EB & Ors v Guardianship Tribunal & Ors - [2011] NSWSC 767

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: EB & Ors v Guardianship Tribunal & Ors [2011] NSWSC 767
Hearing dates: 11, 12 & 13 May 2011
Decision date: 02 August 2011
Jurisdiction: Equity Division - Protective List
Before: Hallen AsJ
Decision:
(a) Order that leave is granted for the appeal so far as it relates to the reasons for decision delivered on 12 March 2010.
(b) Order that the Summons be stood over to a date to be agreed for further argument on the relief to be given.

Catchwords: The Plaintiffs appeal the decision and orders made by Guardianship Tribunal for financial management and guardianship in respect of the third Plaintiff, made by the fourth Defendant - Tribunal made orders pursuant to which the third Defendant was appointed financial manager of third Plaintiff's estate, and the second Defendant was appointed guardian of the third Plaintiff.
Legislation Cited: Guardianship Act 1987
Mental Health Act 2007
NSW Trustee and Guardian Act 2009
Protected Estates Act 1983
Value Added Tax (General) Regulations 1985 (UK)
Cases Cited: A; Ms v Public Guardian & Ors [2006] NSWADTAP 55
Absolon v NSW TAFE [1999] NSWCA 311
ACJ, Re [2007] NSWGT 15
Aid Society Ltd v Day [1978] 1 CR 437
Aikman v White [1986] STC 1
Association of Architects; Ex parte Municipal Officers Assn; Re (1989) 63 ALJR 298
Attorney General for the State of New South Wales v X (2000) 49 NSWLR 653
Australian Foremen Stevedores Assn v Crone (1989) 20 FCR 377; 98 ALR 276
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Bar-Mordecai v Rotman [2000] NSWCA 123
Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321
Carew v Protective Commissioner [2005] NSWADTAP 13
Charlton v Baber [2003] NSWSC 745
Coldham, Re; Ex parte Municipal Officers Assn; (1989) 84 ALR 208
Collection House Ltd v Taylor [2004] VSC 49
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
DL v Public Guardian [2008] NSWADTAP 6
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501
FA v Protective Commissioner [2009] NSWSC 415
FX v NSW Trustee and Guardian (External) [2011] NSWADTAP 5
G v B (NSWSC, 27 May 1992, unreported)
Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479
GHI (a protected person); Re [2005] NSWSC 581
GM v Guardianship Tribunal; GM v Protective Commissioner [2003] NSWADTAP 59
GS v Protective Commissioner and Guardianship Tribunal [2003] NSWADTAP 52
H v H (NSWSC, 20 March 2000, unreported)
Hayman v Griffiths; Walker v Hanby [1988] QB 97
Hill v Repatriation Commission [2005] FCAFC 23, (2005) 218 ALR 251
Hoe v Manningham City Council [2011] VSC 37
Holt v Protective Commissioner (1993) 31 NSWLR 227
Hopkins v Smethwick Board of Health (1890) 24 QBD 712
House v Defence Force Retirement and Death Benefits Authority [2011] FCAFC 72
Hussain v Minister for Foreign Affairs [2008] FCAFC 128; (2008) 169 FCR 241
IF v IG [2004] NSWADTAP 3
Italiano v Carbone [2005] NSWCA 177
J v J [2011] WASCA 126
JAB [2010] WASAT 97
Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516
John v Rees [1970] Ch 345
Johnson v NSW Guardianship Tribunal [2009] NSWSC 664
KA v Public Guardian [2004] NSWADTAP 25
Kowalski v Chief Executive Officer of Medicare Australia [2010] FCA 413; (2010) 185 FCR 42
KV v Protective; KW v KV (No 2) [2004] NSWADTAP 48
Livesey v New South Wales Bar Association (1983) 151 CLR 288
Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340; (2004) 141 FCR 346
McD v McD (1983) 3 NSWLR 81
McDonald v Guardianship and Administration Board [1993] 1 VR 521
MH6 v Mental Health Review Board (2009) 25 VR 382
Mahon v Air New Zealand Ltd [1984] AC 808
Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
N v N (NSWSC, 13 March 1997, unreported)
Nanschild v Pratt [2011] NSWCA 85
OM v MN [2008] NSWSC 36
Ormwave Pty Ltd v Smith [2007] NSWCA 210; 5 DDCR 180
OT v OU [2010] NSWADTAP 9
P v D1 [2011] NSWSC 257
P v R [2003] NSWSC 819
Public Service Board (NSW) v Osmond (1986) 159 CLR 656
Public Trustee v Blackwood [1998] 8 Tas R 256
PY v RJS [1982] 2 NSWLR 700
P9/2000 [2011] NSWSC 49
R; Re [2000] NSWSC 886
Rajski v Scitec Corporation Pty Ltd (NSWCA, 16 June 1986, unreported)
Refugee Review Tribunal; Re; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
S v S [2001] NSWSC 146
Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331
Slinko v Guardianship And Administration Tribunal [2006] 2 Qd R 279
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Source and Resources Pty Ltd v Department of Environment, Climate Change and Water [2010] NSWLEC 228
Stead v State Government Insurance Commission (1986) 161 CLR 141
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZLPN v Minister for Immigration and Citizenship [2010] FCA 202
TC v Public Guardian [2006] NSWADTAP 15
Titan v Babic (1994) 49 FCR 546
Tobin v Ezekiel [2008] NSWSC 1108
Tomasevic v Toll Holdings Ltd [2011] VSC 231
Tomko v Palasty (No 2) [2007] NSWCA 369
Towie v Medical Practitioners Board of Victoria [2008] VSCA 157
UP v NSW Trustee and Guardian [2010] NSWADTAP 69
W v G [2003] NSWSC 1170; (2003) 59 NSWLR 220
Weal v Bathurst City Council [2000] NSWCA 88
WL v NSW Trustee and Guardian [2011] NSWADTAP 22
World Best Holdings Ltd v Sarker [2004] NSWSC 935
XA v NSW Trustee and Guardian [2011] NSWADTAP 20
XYZ v State Trustees Ltd [2006] VSC 444
Chen v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 591
Texts Cited: Aronson, Dyer, Groves, Judicial Review of Administrative Action, 4th ed, Law Book Co 2009
Oxford English Dictionary
Category: Principal judgment
Parties: EB (first Plaintiff)
LB (second Plaintiff)
MB (third Plaintiff)
Guardianship Tribunal (first Defendant)
Public Guardian (second Defendant)
NSW Trustee & Guardian (third Defendant)
LW (fourth Defendant)
Representation: First, second and third Plaintiffs not legally represented
NSW Trustee & Guardian (second and third Defendants)
Other Defendants removed as Defendants

File Number(s): P38/2010 (2010/288147)

JUDGMENT

Nature of the Proceedings

HIS HONOUR: In conformity with the policy requirements of Guardianship Act 1987 ("the Act"), s 57, in these reasons, the Court will not publish the names of the person under guardianship and financial management, or material that identifies, or is likely to identify, that person. Nor will it publish the identity of any person who appeared as a witness, or who is mentioned, or was otherwise involved in the proceedings. It will identify the relevant persons by reference to her, or its, role, as a party in the present proceedings.

The first and second Plaintiff is each a daughter of the third Plaintiff. The first Defendant was the Guardianship Tribunal ("the Tribunal"). The second Defendant is the Public Guardian. The third Defendant is the NSW Trustee and Guardian. The fourth Defendant was a senior social worker with the Eastern Suburbs Mental Health Service, employed by the Area Health Service. (The first and fourth Defendants were removed as parties in these proceedings.)

It was the fourth Defendant who made an application to the Tribunal on about 3 November 2009, that led to the making of certain orders in December 2009. By those orders, the third Defendant was appointed the financial manager of the third Plaintiff's estate, and the second Defendant was appointed the guardian of the third Plaintiff for a limited period and for limited purposes.

There was a review of the limited guardianship order (on 8 and 19 February 2010), and the Tribunal, on 12 March 2010, renewed the guardianship order for 3 years. It also extended the powers of the second Defendant.

By Summons filed in this Court on 30 August 2010, the Plaintiffs appeal the decision of the Tribunal appointing the third Defendant as financial manager of the third Plaintiff, and the second Defendant as guardian; they seek an order that the Tribunal's orders be dismissed or set aside, or, in the alternative, that the financial management of the third Plaintiff's estate, and her guardianship, be granted to the first and second Plaintiffs.

There are some 43 grounds of appeal identified in the Summons following which the words "there are more grounds" appear. Mercifully, none were added at the hearing.

The appeal is brought pursuant to s 67 of the Act.

Procedural History in this Court

The matter had been before the court a number of times prior to the hearing. The Court records reveal that the first occasion was on 18 October 2010, when Windeyer J ordered that the appeal against the orders of the Tribunal were not to operate as a stay of those orders, with the exception that certain proceedings in the Land and Environment Court involving real property at Bondi (to which I shall refer as "the Bondi address" or "the Bondi property"), owned by the third Plaintiff, and in which the first and second Plaintiffs live, were not to be settled until the determination of the appeal or earlier order.

On that occasion, his Honour stood the proceedings over to 29 November 2010, before the Protective List Judge. His Honour stated the need to have the Plaintiffs' evidence prepared and noted the importance of looking after the third Plaintiff.

Pursuant to orders made by Palmer J, on 29 November 2010, the first and the fourth Defendants were each removed as a party to the proceedings. The matter was then stood over until 8 December 2010 for further directions.

On 8 December 2010, Palmer J delivered a short, ex tempore, judgment, in which he concluded that the first Plaintiff "seems intent on delaying the bringing on of this application for as long as possible". His Honour also stated that "it is contrary to the interests of the third Plaintiff, and a denial of natural justice to the other parties involved in these proceedings simply to let this matter drift, without bringing it to resolution". His Honour was not satisfied that the first Plaintiff was making a genuine attempt to bring the matter forward for trial.

His Honour adjourned the matter until 9 February 2011, at which time he said that he expected "the earliest possible date for the hearing of the appeal" would then be fixed. His Honour also stated that "[I]f [the first Plaintiff] does not appear on that day, or says that she is not ready to proceed, I think it will inevitably follow that her Summons will be dismissed for want of prosecution".

Bergin CJ in Eq, on 9 February 2011, referred the matter to me, for hearing, on 11 and 12 May 2011. Directions as to the filing and service of evidence were also made by her Honour, which, so far as the evidence of the Plaintiffs was concerned, it was necessary for me to extend on 11 April 2011.

The Hearing of the Appeal

Neither side complied with other directions made by her Honour, regarding the filing of a court book consisting of the evidence, any objections thereto, and a short outline of submissions.

The failure to comply with the directions made, has, inevitably, led to the matter taking a little longer than it might have. However, another reason for the length of the hearing is that the Plaintiffs have been, and were, at the hearing, unrepresented.

It is the latter fact, also, that has required me to provide more detailed reasons for judgment than might otherwise have been necessary and so that the Plaintiffs will more readily understand this decision.

Despite all of the steps previously taken by the Court to have the matter made ready, during the hearing, the Plaintiffs made much of their continued inability to provide all of the evidence upon which they wished to rely. However, as I made clear to them, more than once, they had commenced the proceedings; those proceedings related to orders made in December 2009 and March 2010; the matter had been before the Court on several occasions since the filing of the Summons; on each, the importance of filing and serving the evidence to be relied upon was highlighted; that it was necessary, in the conduct of the case, to consider not only their rights, but also the rights of the second and third Defendants; and that there was a stay in operation, which stay may be affecting the rights of a third party (to recover costs).

I also repeated what had been said, by other Judges, about the need to look after the third Plaintiff. (I shall return to this topic later in the reasons.)

Bearing in mind the first and second Plaintiffs' conduct of the case, both before, and at, the hearing, I consider that they well appreciated what was required to have been done in relation to filing and serving evidence prior to the hearing and that they chose to conduct the case in the manner that they did.

I have borne in mind, during the hearing, that the Plaintiffs were not legally represented and I attempted, on several occasions, to provide them with some assistance, the nature of which was not objected to by the second and third Defendants' legal representatives: Rajski v Scitec Corporation Pty Ltd (NSWCA, 16 June 1986, unreported). However, the first and second Plaintiffs, and so it seemed, the third Plaintiff, did not require help, for example, with regard to court protocol, or any guidance in respect to the presentation of final submissions. They sought assistance, at times, simply to clarify matters that had been raised.

Whilst, initially, the first and second Plaintiffs seemed unfocussed, I am also satisfied that by the third day of the hearing, they had considered their submissions carefully. Importantly, they had no difficulty reminding me of various sections of the Act that were relevant to the arguments presented, with which sections they seemed to have some familiarity. Their submissions were, for the most part, relevant, reasonable, and cogent.

The second and third Defendants appeared, with legal representation, at the hearing and opposed the Plaintiffs' application. As the Court would expect, the conduct of the legal representatives was scrupulously fair. Appropriate concessions were made and no objection was taken to the assistance provided to the Plaintiffs (particularly as to time).

However, it was submitted that leave to proceed, because the appeal was out of time, should not be granted to the Plaintiffs. Otherwise, there was general opposition to the relief sought.

In accordance with the directions made on 11 April 2011, the Plaintiffs had filed some affidavits that went, principally, to the relationship of the first and second Plaintiff with the third Plaintiff, and to other matters that had little, if anything to do, with the matters to be decided. These affidavits were from neighbours and friends. However, no objection was taken to the contents of these affidavits. I shall return to the relevance of these affidavits later in these reasons.

On 10 May 2011, the day before the hearing commenced, the Plaintiffs filed two further affidavits, one of which was of the first Plaintiff, and to which was attached a "Psychiatric Report" dated 1 May 2011 of a Consultant Forensic Psychiatrist, a report dated 14 December 2010, of a Consultant Psychiatrist, as well as a report dated 9 May 2011 from the third Plaintiff's "Case Manager" from the South Eastern Sydney Area Health Service. Objection was taken to the late service of the affidavits.

I explained to the Plaintiffs that neither the affidavit, nor the reports, seemed to go to the matters that I had to decide on the appeal, which was from the decision of the Tribunal made on 4 December 2009 and from the decision of 12 March 2010. The reports related to the third Plaintiff's current condition, psychiatric and otherwise.

As importantly, no reasonable opportunity had been given to the Defendants to consider the contents of the reports, and to consider whether it was necessary, and if so, to obtain, evidence in response to them. Therefore, I rejected the tender of each of the reports. (My reasons are to be found at (T20.49 - 21.22).)

When I was deciding the question of the admissibility of the reports, I considered that it may be that the Plaintiffs, with the appropriate evidence, and if they were unsuccessful, could seek, to have the orders made by the Tribunal revoked because of what was said to be the current condition of the third Plaintiff. Whether I would adjourn the matter to permit such an application to be made, bearing in mind the late service of the reports, was relevant.

I then asked some questions of the third Plaintiff. I formed the impression that she would like to return to live in the Bondi property. One of the matters of concern, when the matter was before the Tribunal, had been the state and condition of the Bondi property and whether it would be in her best interests to return to live there. I also formed the view, if the matter were to be adjourned, to enable further evidence to be obtained, particularly if the third Plaintiff sought, meantime, to return there to live, that its current state and condition would be relevant.

When I raised my concern, I was informed, from the bar table, that the Bondi property was not as it had been in the past and that it was safe for the third Plaintiff to live there. The second and third Defendants did not accept that this was so.

Accordingly, I asked the Plaintiffs what their attitude would be to the Court and the legal representatives having a view of the Bondi property solely for the purpose of observing its condition. I was informed that all of the Plaintiffs would oppose that course being taken "on privacy grounds". (As will be seen, opposition to permitting an inspection of the Bondi property was one of the relevant matters raised in the Tribunal.) In those circumstances, it seemed to me that I should not take this aspect further.

Following the identification of the affidavits that the Plaintiffs wished to read, I asked whether there was any other evidence on which they intended to rely, as, until then, there was no evidence filed, or tendered, relating to the Tribunal's orders, or the reasons for either of the Tribunal's decisions. In fact, very little, if anything, by way of evidence, had been filed, by either side, concerning the different hearings in the Tribunal.

I pointed out that there had been filed in the proceedings (on an interlocutory application), an affidavit of Tom C, a solicitor employed in the Office of the Crown Solicitor, which affidavit provided useful information about the background facts and to which affidavit was annexed a copy of the various orders made in the Tribunal, as well as a copy of both of the reasons for the decisions of the Tribunal the subject of the appeal.

The affidavit also had annexed a copy of other documents that might be relevant to the questions if, and when, the reasons for the decision of the Tribunal made on 4 December 2009 and on 12 March 2010 had been "furnished" to the Plaintiffs. (I shall return to this subject later in these reasons.) A copy of various letters, purportedly sent to one, or other, of the Plaintiffs, from the Tribunal, to the Bondi address, was annexed to the affidavit, although the copy documents referred to in the letters, were not.

To assist the Plaintiffs to make a decision about whether they wished to read Mr C's affidavit as part of their case, the Court provided a complete copy of the affidavit to them, and gave them an opportunity to read it. I asked them to consider whether they might wish to read, in their case, part, or all, of the affidavit.

After spending some time reading Mr C's affidavit, the Plaintiffs stated that they did not wish to read any part of it. This appears to have been a forensic decision made, at that time, by the first and second Plaintiffs, because some of the documents annexed to the affidavit, which may not have assisted in the appeal (as to if, and when, the reasons for decision had been "furnished" to them).

I then pointed out to the legal representatives of the second and third Defendants that since there was an issue regarding the receipt of the reasons for the decision of 4 December 2009, I would require proper proof of postage of documents to the Plaintiffs if reliance was to be placed on documents said to have been sent to them by post.

I also commented that, in the present case, it might be only when the relevant reasons for decision were shown to have been posted, that those reasons could be regarded as being "furnished" to the Plaintiffs. (I took the view that the mere existence of a copy of a letter in a file would be of limited weight in proving that the document was posted on, or about, that date, especially when there was no evidence of the act of properly addressing, pre-paying, and posting the document or the accompanying letter.)

I raised the issue whether the receipt, or non-receipt, of the reasons for decision, in each case, might also be relevant. However, I indicated that this might be a matter for the Plaintiffs to establish.

In the events that occurred subsequently, another copy of some of the documents annexed to that affidavit, were tendered as part of the Plaintiffs' case. This followed a question by the Plaintiffs whether the appeal could proceed without reference to the reasons for decision.

The Plaintiffs' copy of the tendered documents contained handwriting, which I said would not form part of the tender and which I would not read. On this basis, no objection was taken to the tender.

All of this was followed by the filing of two further affidavits, after the long adjournment on the first day of the hearing, one affirmed by each of the first and second Plaintiffs, in which she deposed to the date that the Tribunal's reasons for decision of 4 December 2009 was received by her. As there was no opposition to filing, and reading, of these affidavits, I permitted each affidavit to be filed in Court and to be relied upon.

This, then, required me to permit the second and third Defendants to read, in reply, the parts of Mr C's affidavit, which disclosed the documents, including a copy of the reasons for decision that had been sent to the Plaintiffs, and when they were said, by him, to have been sent by a staff member of the Tribunal to them.

The second and third Defendants did not rely upon any additional evidence regarding the actual postage of any of the letters to each of the Plaintiffs and did not identify, other than by reference to the annexures to Mr C's affidavits, the documents that had actually been sent under cover of each of the letters.

Neither party tendered, or referred me to, any transcript of the evidence that was given in the Tribunal, or identified, in any affidavit, a version of the events that had occurred at any of the hearings. Not even the original application made by the fourth Defendant formed part of the evidence in the proceedings. Thus, only the Orders made, and the reasons for decision of December 2009 and March 2010, as well as a few of the other documents that were recorded by the Tribunal in the reasons for decision were in evidence.

From these documents, I was able to glean some of the events that occurred and I shall return to my findings later in these reasons.

The Plaintiffs' Adjournment Application at the Hearing

Shortly prior to the short adjournment on the morning of the second day of the hearing, the Plaintiffs made an application for an adjournment, so it was said, to enable them to obtain further evidence. The legal representative of the second and third Defendants informed me that that the Defendants would oppose any adjournment of the matter. Subsequently, I refused the adjournment and stated that the reasons would form part of my judgment.

The grounds for the adjournment were the same as had been stated previously, namely that the Plaintiffs had not had a sufficient opportunity to obtain evidence to refute the matters in each of the reasons for decision the subject of appeal; that it was prejudicial to their case to proceed without such evidence; and that others, including the staff members of the Tribunal, and the Supreme Court Registry staff, had acted to prevent them from obtaining such evidence (e.g. a transcript of the proceedings before the Tribunal). (There was no evidence to substantiate the last matter relied upon.)

I have, earlier, identified the procedural background of these proceedings and the comments by different Judges before whom the matter came, as to the need for the Plaintiffs to have their case prepared and identifying other circumstances affecting, not only the Plaintiffs, but the second and third Defendants, as well as a third party (which was involved in litigation with the Plaintiffs) who would be affected by further delay.

Furthermore, I kept in mind the succinct statement of general principle stated by Craig J in Source and Resources Pty Ltd v Department of Environment, Climate Change and Water [2010] NSWLEC 228 at [16]:

"Current principles informing the approach to case management requires that a laissez faire approach be disavowed. As the decision of the High Court in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 demonstrates, part and parcel of the process of case management requires that close consideration be afforded to the public interest which includes not only the particular interests of the parties but also confidence in the administration of justice generally. The latter consideration involves acknowledgement that parties to other litigation have been displaced or held back in order to accommodate the hearing of the case at hand and thus confidence in the administration of justice is lost when the Court is seen to accede to the vacation of hearing dates or the granting of adjournments without adequate justification. Furthermore, s 56 of the Civil Procedure Act 2005 mandates that proceedings before the Court be conducted so as to ensure the just, quick and cheap disposal of proceedings."

I was satisfied that the Plaintiffs had been given more than an adequate opportunity to obtain, file, and serve, any evidence upon which she, or they, wished to rely in these proceedings.

The Events giving rise to the Appeal

I have gleaned the following facts from the evidence that was relied upon by the parties. I am satisfied that they accurately reflect what occurred.

The application of the fourth Defendant was filed on, or about, 3 November 2009. It was listed for hearing on 4 December 2009.

The fourth Defendant applied for the appointment of both a guardian and a financial manager for the third Plaintiff because of her concern that the third Plaintiff needed someone to clean the very considerable amount of refuse that surrounded her Bondi home. The fourth Defendant also considered that it might not have been safe to discharge the third Plaintiff from hospital to return to live there.

On 19 November 2009, the Tribunal, being satisfied that the third Plaintiff, a prescribed person, ought to be separately represented, ordered that a separate representative be appointed for the third Plaintiff in the proceedings before it. No reasons for this order were given, it being written, on the order, that "[N]o written reasons for this determination shall be provided unless the Tribunal is requested to do so within 14 days of the determination". Mr Douglas Barry of counsel attended the hearing on 4 December 2009 in that capacity.

The Tribunal Registry was unable to make direct contact with either the first, or second, Plaintiffs before the hearing took place. On 23 November 2009, the Tribunal Registry is said to have sent to both Plaintiffs, by express mail posted to each of them separately and in separate envelopes, addressed to the Bondi address, the relevant background papers, submissions, and reports that had been prepared for the purposes of the hearing on 4 December 2009.

At about 3.30 p.m., on 3 December 2009, the first Plaintiff contacted the Tribunal Registry by telephone. She indicated that she had heard, on the evening of 1 December 2009, about the hearing. The first Plaintiff said that she had not received notice of the hearing, and told the officer of the Tribunal Registry to whom she spoke that she wished to request an adjournment.

On 4 December 2009, the first Plaintiff attended the hearing and made an application for an adjournment of the proceedings. The Tribunal refused her application.

On 4 December 2009, after a hearing, the Tribunal ordered that:

(a) the estate of the third Plaintiff be subject to management under the provisions of the NSW Trustee and Guardian Act 2009.

(b) the management of the estate of the third Plaintiff be committed to the NSW Trustee.

(c) the third Plaintiff be placed under guardianship for a period of two months from the date of the order (or until varied suspended or revoked by the Tribunal at an earlier date) and that her guardian should be the Public Guardian. The order was for limited guardianship, giving the guardian functions in relation to accommodation and services for the third Plaintiff. The order was also subject to the "standard condition" that the guardian, in the exercise of powers and functions, shall take all reasonable steps to bring [the third Plaintiff] to an understanding of the issues affecting her and shall obtain and take into consideration, but not be bound by, her views when significant decisions are to be made.

On 13 December 2009, the Tribunal issued its written reasons for decision in relation to each of the financial management, and limited guardianship, orders.

On 5 January 2010, the Registrar of the Tribunal is said to have sent a letter enclosing a copy of the Tribunal's orders and reasons for decision from the hearing held on 4 December 2009, by post, to each of the Plaintiffs at the Bondi address.

I interpolate, that in the proceedings before me, the first Plaintiff gave sworn evidence that she may have received the original letter and the reasons for judgment of 4 December 2009, and that if she did, the reasons for judgment were incomplete, with pages missing, and were, therefore, incomprehensible. The second Plaintiff gave sworn evidence that she did not receive the letter dated 5 January 2010, addressed to her and/or the reasons for decision. (She remembered seeing only one incomplete, and incomprehensible, reasons for decision of the Tribunal, but could not remember when she did so.) There was no evidence about the receipt of the letter that appeared to be addressed to the Bondi property, and sent, to the third Plaintiff. I note, however, that she was, then, not living there.

On 14 January 2010, the Tribunal ordered that a separate representative be appointed for the third Plaintiff in the proceedings for the review of the guardianship order made on 4 December 2009. (Apparently, the Plaintiffs did not seek this review.) No written reasons for making the orders were given.

There is some evidence that the first Plaintiff wrote to the Tribunal on 22 January 2010. (Neither the original, nor a copy, of this letter is in evidence in the present proceedings.)

On 2 February 2010, the first and second Plaintiffs attended the Tribunal and spoke with Ms S, a senior investigation officer. They informed her that they opposed any further order being made; that they believed the third Plaintiff could return home to live; that they could provide support for her and; that she did not need outside services. They also said that they had requested reasons for the decision for the appointment of the separate representative for the third Plaintiff, which reasons had not been provided.

I interpolate, again, that there is a dispute about whether the first and/or second Plaintiff stated, as appears in a diary note of Ms S of 2 February 2010, that she had received a copy of the orders and the reasons for decision of December 2009.

On 2 February 2010, Ms S, on behalf of the Registrar of the Tribunal, is said to have written a letter to the first Plaintiff, and sent it to her at the Bondi address, enclosing a number of documents, including a copy of the reasons for decision in relation to each of the guardianship and financial management orders made on 4 December 2009. The letter and documents were said, in the letter, to have been sent, as they had been submitted in relation to the hearing for the review of the guardianship order.

There was also a dispute, before me, whether a copy of the reasons for decision of 4 December 2009 were sent with other documents under cover of the letter dated 2 February 2010 addressed to the first Plaintiff. I accept that it is likely that a copy of the reasons for decision of 4 December 2009, and the orders made on that date, were not sent under cover of the letter dated 2 February 2010, as the words "Not Applicable" appear in the column near the reference to each of those documents on one of the Tribunal documents. Otherwise, the evidence suffers from the same deficiency as to proper proof of postage previously noted.

On 2 February 2010, the first Plaintiff wrote to the Tribunal, referring to her letter of 22 January 2010 (which Ms S had told her had not been received), asking to be provided with the identity of the representative appointed to represent the third Plaintiff (although later in the letter she states that she was informed by Ms S that day who had been appointed), and to provide reasons for the determination that a separate representative was required. The separate representative is the one referred to in the order of 14 January 2010.

The first Plaintiff also stated, in the letter of 2 February 2010, that there had been no hearing of which she had been informed before the determination for the appointment of a separate representative had been made. She asked other questions about the manner in which that determination had been made.

On 8 February 2010, the Tribunal adjourned the review proceedings for approximately two weeks to a date to be fixed by the Registrar. The Tribunal also ordered, pursuant to s 58 of the Act, that it had determined to grant leave to the third Plaintiff to be represented in the review proceedings.

On 12 February 2010, Ms S, on behalf of the Registrar of the Tribunal, is said by Mr C to have sent a letter to the first and second Plaintiffs, at the Bondi address, enclosing what were said to be "a complete set of documents" submitted in relation to the Tribunal hearing relating to the third Plaintiff. The evidence about this letter also suffers the same deficiencies regarding proof of postage referred to previously.

In addition, I accept that it is likely that a copy of the reasons for decision of 4 December 2009, and the orders made on that date, were not sent under cover of this letter, as the words "Not Applicable" appear in the column near the reference to each of these documents in one of the Tribunal documents.

There was a review hearing of the Tribunal's decision regarding the limited guardianship order conducted on 19 February 2010. At that review hearing, the Tribunal was considering whether the guardianship order should continue, be varied, or allowed to lapse.

Its written reasons for decision on the review hearing were issued on 12 March 2010. The Tribunal reviewed the previous guardianship order and continued it for a period of three years (unless the Tribunal varied, suspended or revoked the order at an earlier date). The Public Guardian was appointed as guardian with authority to make decisions for her about her accommodation (with coercive powers), health care, medical and dental treatment and services. (Thus, it seems, the authority of the guardian was extended as a result of the review.)

In his affidavit, Mr C stated that on 14 April 2010, the Registrar of the Tribunal sent a letter enclosing a copy of the Tribunal's orders and reasons for decision from the hearing held on 19 February 2010, to each of the Plaintiffs at the Bondi address.

There is no specific evidence by any of the Plaintiffs that she did not receive this letter or the documents enclosed with it.

There is no explanation why the letter and the reasons for decision were sent to the Plaintiffs over one month after the Tribunal's reasons for decision were delivered.

On 28 May 2010, the first Plaintiff wrote to the Tribunal requesting a copy of various documents including a copy of the reasons for decision in relation to separate representation for the third Plaintiff. Although in the letter she stated that she would attend the Tribunal on 31 May 2010 to collect a copy of the documents referred to in her letter, the first Plaintiff did not, in fact, do so.

Mr C deposes that on 15 June 2010, Ms N, on behalf of the Registrar of the Tribunal, wrote to the first Plaintiff. The letter refers to an enclosed copy of the reasons for decision for the hearings on 4 December 2009, 8 February 2010 and 19 February 2010, noting that the Tribunal had previously sent these documents on 5 January 2010 and 14 April 2010. The letter also stated that the Tribunal did not provide written reasons for decision for the appointment of separate representatives unless a party to the proceedings requested written reasons within 14 days of the decision (which, it was said, had not been done).

Each of the first and second Plaintiff admit that the first Plaintiff received the letter dated 15 June 2010, but state, under oath, that she did not receive it until 2 August 2010. Each states that this was the date that the reasons for decision of 4 December 2009, were "furnished" to them.

If this evidence is accepted, since the Summons was filed on 30 August 2010, the appeal has been instituted within the period ending 28 days after the day on which the written instrument setting out the formal reasons for the decision was "furnished" to them. An extension of time by order of the Supreme Court is not then required for the filing of the appeal: s 67(2)(b) and (c) of the Act).

The Tribunal Hearing - 4 December 2009

I take the following facts from the reasons for decision of 4 December 2009:

(a) The first and second Plaintiffs both attended, in person, the hearing, on 4 December 2009, which hearing was held at the Prince of Wales Hospital.

(b) At the commencement of the hearing, the first Plaintiff repeated her concerns that she had not received any documents from the Tribunal concerning the proceedings involving the third Defendant. She specifically stated that she had not received any express post mailings from the Tribunal. The first Plaintiff confirmed that she and the second Plaintiff wanted to present other material to the Tribunal, and wished to obtain a second opinion concerning the diagnosis of the third Plaintiff's condition.

(c) The fourth Defendant opposed the adjournment. She stated that an urgent decision was needed concerning the third Plaintiff's accommodation, because as she could now be discharged from hospital, it would be unsafe to discharge her to return to live in the Bondi property.

(d) The Consultant Psychiatrist at the Hospital at which the third Plaintiff was a patient, supported the opposition to the adjournment expressed by the fourth Defendant and agreed with the reasons advanced by the fourth Plaintiff.

(e) The third Plaintiff's separate representative, reported that he had been trying to make contact with the first and second Plaintiffs since 19 November 2009, but without success. He also reported that the third Plaintiff had told him, on the day before the hearing, that she had not spoken with the other Plaintiffs since the day of the Magistrate's hearing, shortly after her admission to hospital in August 2009. He said that he could not find, in the records of the hospital, any reference to any visits to the third Plaintiff by the first and second Plaintiffs.

(f) The third Plaintiff's separate representative also opposed the adjournment sought by the first Plaintiff. According to him, it would not be in the third Plaintiff's best interests to delay the proceedings before the Tribunal, given the state of her health. He also said, based upon his observations of the state of the Bondi property, that it would not be in her interests to delay the proceedings.

(g) He submitted that any delay in the completion of the proceedings before the Tribunal would occasion significant prejudice to the third Plaintiff in certain proceedings before the Land and Environment Court. He indicated that he was not aware of any plans for the third Plaintiff to be otherwise represented in those proceedings.

(h) The Tribunal found merit in the submissions of the third Plaintiff's separate representative, and determined that there were urgent matters requiring an immediate decision by the Tribunal. It concluded that it would not be in the third Plaintiff's best interests to postpone decisions on these urgent matters. Accordingly, it decided that it was in the third Plaintiff's best interests to refuse the adjournment requested by the first Plaintiff.

(i) The Tribunal Members had brought with them to the hearing on 4 December 2009, an additional set of all of the background papers, including the reports and submissions. The Tribunal gave this additional set of papers to the first and second Plaintiffs and did not proceed for some 35 minutes, to allow them time to read those papers, and to discuss them with the third Plaintiff.

(j) When the hearing resumed following that adjournment, neither of the first nor second Plaintiffs indicated that she had had an insufficient amount of time to read the papers, and to discuss them with the third Plaintiff. However, later during the hearing, the first Plaintiff advised that she and the second Plaintiff had not completed the reading of those papers during the period that had been allowed to them.

(k) The Tribunal was of the opinion that it was not possible to attempt to bring the parties to a settlement. No precise reasons for the opinion were expressed in the reasons for decision.

(l) The Tribunal set out, in the reasons, what it must be satisfied of before making orders for the appointment of a financial manager and of a guardian.

(m) The Tribunal came to the conclusion that the third Plaintiff was a person with a disability within the meaning of the Act. The medical evidence, of which they were satisfied, described the third Plaintiff as having a psychotic disorder with compulsive symptoms. The Consultant Psychiatrist, who gave further details of the third Plaintiff's condition, referred to an earlier diagnosis of another doctor (whose speciality was not identified), as "a psychotic disorder", and stated that there were risks to herself in terms of health and safety issues as well as of financial harm. He also stated that it was difficult for the third Plaintiff to make her own decisions.

(n) The Tribunal was also satisfied of other evidence that disclosed that the third Plaintiff had difficulties making decisions about the cleaning up of the Bondi property.

(o) The third Plaintiff's separate representative also made reference to her lack of insight (although the precise reasons to lead to his view was not disclosed).

(p) The Tribunal also concluded that the third Plaintiff, because of the disability, at least partially, she was incapable of managing her own person and following submissions by her separate representative relating to the Bondi property and the accumulation of "refuse" there, that she was in need of a guardian.

(q) The reasons for decision also make reference to s 14 of the Act and state that the Tribunal took account of the matters stated there, in particular:

(i) the views of the third Plaintiff, and of her carers, the first Plaintiff and the second Plaintiff;

(ii) the importance of preserving the third Plaintiff's existing family relationships;

(iii) the importance of preserving the third Plaintiff's particular cultural and linguistic environments; and

(iv) the practicability of services being provided to the third Plaintiff without the need for the making of such an order.

(r) The Tribunal, in those circumstances, decided to make a temporary guardianship order for two months and a financial management order.

(s) It determined that the functions of the guardian should be limited to accommodation (because of the state of the Bondi property) and because the first and second Plaintiffs wished the third Plaintiff to return to live there.

(t) The Tribunal recorded that there was consensus amongst members of the third Plaintiff's "treatment team" at the hospital that the best outcome was for her to return to live in her own home, but only if the Bondi property could be regarded as safe and clean. There was evidence that she was increasingly depressed staying in the hospital.

(u) A function that the guardian was not required to have related to health care and medical and dental consensus. The first and second Plaintiffs as the "persons responsible", were able to give consent to the third Plaintiff's medical treatment, should that become necessary. However, the guardian was to have a "services" function to provide assistance to make decisions concerning the cleaning up of her property, including the power to override the third Plaintiff's decisions.

(v) In relation to the identity of the guardian, the first and second Plaintiffs submitted that they should be appointed her joint private guardians, if any guardianship order were made. A neighbour, who supported their appointment, described them, as "dutiful" daughters of the third Plaintiff.

(w) The third Plaintiff said that she did not need a guardian.

(x) The third Plaintiff's separate representative strongly opposed the appointment of the first and second Plaintiffs as the guardian. Their involvement, in allowing the third Plaintiff to live as she had been, and to be engaged in the dispute with the Council, were relied upon to show the unsuitability of both the first and second Plaintiffs as guardians.

(y) The Tribunal accepted the separate representative's submissions and appointed the Public Guardian. The initial appointment was to be for 2 months because "considerations of procedural fairness very significantly influenced" the decision. The reasons stated were that "by making the current order for two months only, [the Plaintiffs] will each have adequate time to prepare for the review of the guardianship order and to gather other reports for presentation to the Tribunal at the review hearing".

(z) The Tribunal considered that the evidence concerning the third Plaintiff's health and ability generally, remained relevant to the question whether she was able to manage her affairs.

(aa) At the hearing, much appears to have been made of the Plaintiffs' dispute with the Council. The separate representative for the third Plaintiff said that the first and second Plaintiffs had managed her financial affairs and that she had very little understanding of the need for legal representation to protect her interests. He said that she had no understanding of the proceedings taken by the Council and that she thought that she might be able to "work off" her debts to the Council. (The Council were said to have obtained judgments in excess of $100,000 and that the third Defendant's liabilities might exceed $200,000.)

(ab) It was said that the third Plaintiff had told the Tribunal that she owned the Bondi property, "together with my former husband" and that the first and second Plaintiffs lived there but did not pay rent. She also said that she conducted a bank account but was unable to remember the bank, or how much money might be in her account. She said that she had no debts other than what might be owing to the Council. (No family acrimony was identified.)

(ac) The Tribunal concluded that the third Plaintiff was not capable of managing her financial affairs; she was unable to give the Tribunal relevant information about those affairs and that she had not been managing the Bondi property. It concluded that she required someone to manage those affairs and that the financial manager should be someone independent, rather than the first and/or second Plaintiff.

(ad) The Tribunal was alerted to the fact that some years previously, the third Plaintiff had appointed the first and second Plaintiffs as her enduring Attorneys, subject to certain unidentified limitations and that the third Plaintiff currently supported their appointment. (The written materials considered by the Tribunal included Tribunal documents which had come into existence in 2000 and 2001.)

(ae) The separate representative referred to the secretive nature of the first and second Plaintiffs. He also pointed out that despite the power of attorney, they had not acted to protect the third Plaintiff's interests. Accepting his submissions, the Tribunal concluded that they were not "suitable persons".

(af) In these circumstances, the Tribunal appointed the NSW Trustee. However, this was not an interim appointment.

(ag) The Tribunal alerted the parties to the facility of seeking a review and also informed them of the avenues of appeal from a decision of the Tribunal.

There were some other facts found by the Tribunal:

(a) The third Plaintiff was aged 70 years.

(b) The third Plaintiff had lived with the other Plaintiffs at the Bondi address. They had been her carers.

(c) The third Plaintiff was reported to have a mental illness. She had been detained, as an involuntary patient, under the Mental Health Act 2007 in the Prince of Wales Hospital, since August 2009. She had remained there at the date of the Tribunal hearing.

(d) There had been earlier proceedings involving the third Plaintiff. On 29 November 2000, the Tribunal had appointed the Public Guardian as the third Plaintiff's guardian for a period of six months, to make decisions, on her behalf, about the major services to which she should have access, including, in particular, to arrange for the removal of refuse surrounding her home. That guardianship order had lapsed on 7 May 2001.

(e) Also on 29 November 2000, the Tribunal had dismissed an application for a financial management order for the third Plaintiff. It recorded that there was, at that time, a lack of evidence as to the third Plaintiff's incapacity to manage her financial affairs. (The Plaintiffs tendered the relevant Tribunal documents made at the time in the present proceedings.)

One of the matters about which there was some dispute at the hearing on 4 December 2009, was whether the first and second Plaintiffs had visited the third Plaintiff whilst she had been a patient. It was said that hospital records did not reveal any such visits, whereas the first Plaintiff said that she and the second Plaintiff had visited the third Plaintiff. She identified the most recent visit having taken place on 19 November 2009.

Before leaving this topic, I should mention the written material considered by the Tribunal in coming to its decision on 4 December 2009 (as set out in the reasons for decision):

(a) Guardianship Tribunal, Order and Reasons for Decision, dated 29 November 2000.

(b) Guardianship Tribunal, Order and Reasons for Decision, dated 7 May 2001.

(d) Affidavit of Ms Sally C, dated 1 May 2007.

(e) Report dated 15 January 2008 by Dr Kerry J, Consultant Psychiatrist.

(f) Affidavit of Mr Stephen V, dated 9 March 2009.

(g) Title Search dated 30 April 2009 for land in Folio xx/xxxx.

(h) Report of a Neuropsychological Assessment dated 16 September 2009 by Dr Ilana H.

(i) Report dated 24 September 2009 by Ms Kirstin H, Occupational Therapist, Prince of Wales Hospital.

(j) Report dated 9 October 2009 by Mr B, Waverley Council.

(k) Copies of photographs taken on 22 October 2009 by Waverley Council.

(l) Report dated 26 October 2009 by Dr Matthew L, Consultant Psychiatrist, Prince of Wales Hospital.

(m) Report dated 30 October 2009 by Ms Lynne W, Senior Social Worker, Prince of Wales Hospital.

(n) Letter dated 9 November 2009 from Mr W, Solicitors, to the Kiloh Centre of the Prince of Wales Hospital.

(o) Letter dated 25 November 2009 from Erlina S, Office of the NSW Trustee.

(p) Statement of service of notice of hearing dated 25 November 2009 by Ms Lynne W.

(q) Letter dated 27 November 2009 from Mr W, Solicitors.

(r) Handwritten letter from the first Plaintiff, undated, received 4 December 2009.

A copy of very few of these documents formed part of the evidence on the appeal.

The Tribunal - 8 and 19 February 2010

The review hearing of the limited guardianship order was held on 8 and 19 February 2010 and the reasons for decision were issued on 12 March 2010.

I take the following facts from the reasons for decision of the Tribunal of 12 March 2010:

(a) The review hearing was held over two non-consecutive days, from 9:30 a.m. to 1:00 p.m. on 8 February 2010 and from 10:00 a.m. to 5:00 p.m. on 19 February 2010.

(b) Mr Barry of counsel again acted as the separate representative of the third Plaintiff. Counsel sought leave to represent the third Plaintiff, which leave was granted.

(c) The third Plaintiff was again reported to have a mental illness, one of the consequences of which is that she engaged in severe hoarding behaviour at home.

(d) The making the guardianship order for two months on 4 December 2010, had been to address the difficulties that had been experienced by the first and second Plaintiffs in receiving short notice of the hearing and to enable them to obtain alternative opinions to those advanced by the treating team of the Hospital as to the third Plaintiff's mental health condition.

(e) Since the order of 4 December 2009, the third Plaintiff had remained an involuntary patient at the Hospital.

(f) Since the last order had been made, the Land and Environment Court had made an order under the Local Government Act authorising the Council to clean up the external areas of the Bondi property. A letter had been received from the Council's solicitors. Part of the letter was referred to in the reasons for decision.

(g) Both counsel agreed that the third Plaintiff was able to give instructions.

(h) The first and second Plaintiffs had engaged in unnecessary and lengthy cross-examination, which was primarily aimed at the members of the treating team of the Hospital (with a view, it was said to discrediting those members as tools of the Council).

(i) During the cross-examination of the fourth Defendant, which seemed to be aimed at the Consultant Psychiatrist's credit, the Tribunal, pursuant to s 53 of the Act, exercised its power to limit cross-examination.

(j) The Tribunal also limited the time available to the first and second Plaintiffs to give their evidence in chief. The Tribunal thought that they had focussed on matters that were of peripheral, or marginal, relevance. However, the Tribunal considered that the time was sufficient to address all issues.

(k) During the last hour on the second day of the hearing, the first and second Plaintiffs sought an adjournment to enable them to obtain alternative medical reports. They told the Tribunal that they had been unable to obtain the medical reports whilst the third Plaintiff was in hospital.

(l) This application was refused because "this was one of the purposes for which the short guardianship order was initially made" and because the Tribunal did not accept that such medical reports could not have been obtained. It was the Tribunal's view that the application for adjournment was made for the purposes of delay.

(m) The Tribunal briefly outlined the history of the third Plaintiff's hoarding behaviour, its treatment and consequences, as gleaned from the reports before it. This history revealed various events from the late 1980's.

(n) The Tribunal referred to various reports and other documents that had been relied upon the Consultant Psychiatrist.

(o) The Tribunal also referred to its understanding of events involving the Council and referred to a certificate of judgment for costs against the Plaintiffs of $53,607.75. There was also a reference to a letter from the Council's solicitors.

(p) The Tribunal was informed that an appeal to the Court of Appeal from the decision of the Land and Environment Court had been lodged by the first and second Plaintiffs. (The third Plaintiff was identified as an appellant in the appeal.)

(q) The Tribunal repeated what had to be decided by it.

(r) The Tribunal summarised the detailed evidence from the Consultant Psychiatrist who concluded that a diagnosis of schizophrenia was both appropriate and fitting. He stated that she had been scheduled because there was no means of treating her at home. He had only met the first and second Plaintiffs on one occasion initially, when they were identified as persons interested in the third Plaintiffs' welfare and otherwise, only when they had cross-examined him.

(s) The Tribunal noted the medication the third Plaintiff was taking and the acknowledgement by the Consultant Psychiatrist that she was accepting of her medication during her admission. However, he maintained that she was unable to consent to treatment and unable to make decisions concerning her own care. He was of the view that she required a guardian.

(t) The Tribunal also noted that the Consultant Psychiatrist did not exclude the possibility of the third Plaintiff returning home, but only if those providing her medical care could be satisfied that she was going to a safe and habitable environment. He thought that this was not likely to be possible, because no one outside the family had been allowed to enter her home and because the Plaintiffs refused to allow any health professional, or service provider, in "on privacy grounds". He also considered that an inspection of internal areas of the home was essential before it could be said that the Bondi property was safe to return to.

(u) The Consultant Psychiatrist's evidence in cross-examination by counsel for the third Plaintiff, to whom leave had been granted, that the third Plaintiff and her family would have to co-operate with mental health and other support services accessing and treating her at home. Otherwise, if residential placement was necessary, low-level care was required.

(v) The Tribunal also referred to the fact that since the last hearing, the Co-ordinator of the Severe Domestic Squalor Project, Catholic Community Services, who was also a mental health nurse, had met with the third Plaintiff, on three occasions, and that she had prepared a report that was relied upon in the Tribunal. In that report she referred to the third Plaintiff's hoarding as stress related and did not accept the diagnosis of schizophrenia. She also referred to attempts to discuss the matter with the first and second Plaintiffs, which attempts proved futile.

(w) The Tribunal set out the Co-ordinator's conclusions, which were that the third Plaintiff presented with difficulties with decision-making and problem solving. Returning her to the Bondi property, without knowing that it was habitable and functioning may not be in her best interests. There were a range of strategies and supports that may assist her to better manage her hoarding and stress, but the highest chance of positive improvement required a stable living environment. The disputes between the parties and the Council required resolution. A full inspection of the Bondi property would be required before any decisions could be made as to whether the dwelling was habitable. It was her opinion that no coherent support could be achieved without guardianship, with a guardian having full and coercive functions. When asked by counsel appearing for the third Plaintiff what effect such an order would have, she noted that this would be difficult and complex, requiring careful planning and co-operation between the family and workers.

(x) The Tribunal also set out the views of the third Plaintiff. These included that she wished to go back to the Bondi property; that when she returned home she would stop collecting entirely; that she wanted to handle things herself; she could make decisions herself, and appointing someone else to make her decisions would only make her more stressed and exacerbate her condition; having strangers come into the Bondi property would also stress her; and that she would take medications as prescribed; that she had not been assisted by the Consultant Psychiatrist; she objected to the Public Guardian not having asked her what she wanted; she would not let the representative of the Catholic Community Services assist her, or allow anyone from the treatment team to come into the Bondi property.

(y) The Tribunal set out the evidence of the first Plaintiff, who stated that the third Plaintiff understood the facts and choices she had to make based on those facts. She said that there were no problems inside the Bondi property and that it was clean and habitable. She believed that the best treatment for the third Plaintiff was to allow the second Plaintiff and her to assist the third Plaintiff to clean up the Bondi property.

(z) The Tribunal set out the evidence of the second Plaintiff, who stated that the first Plaintiff had always made decisions for herself and remained able to do so, seeking the opinions of others and weighing the situation up carefully before making the decision. She agreed that the hoarding stemmed from stress and that with her and the first Plaintiff's assistance, the third Plaintiff should be able to control her hoarding behaviour. It was also her view that the Council had played a large part in causing the stress of the third Plaintiff.

(aa) The Tribunal concluded, amongst other things, that the refusal to allow anyone into the Bondi property - so that service providers and the Tribunal could be satisfied that it was a safe environment for her - illustrated the third Plaintiff's incapacity to make decisions and that it emphasised the opinions that she was unable to think through the consequence of decisions. She had a disability - schizophrenia - and as a result was, at least partially, unable to make decisions concerning her own care. The refusal to allow anyone to inspect the Bondi property also provided the basis for concluding that the third Plaintiff should not return to the Bondi property and that she should be placed in alternative accommodation.

The Tribunal also stated that even if the Bondi property were habitable, the refusal of the Plaintiffs to allow professionals into it led to the conclusion that the third Plaintiff would not receive the treatment and support that was required and that this would not be in her best interests.

(ab) For the reasons given, the Tribunal considered that a guardian with power to make decisions about the third Plaintiff's future accommodation, with coercive powers to authorise others to transport, detain and retrieve her, as necessary. Because of her disagreement with the diagnosis reached by the Consultant Psychiatrist, and her refusal to undergo an MRI, that required a guardian who could make decisions about her health care and medical and dental consents, without power to override her objections to treatment. It also considered that because she was likely to require ongoing support and monitoring, from outside services, and because of the opposition to such services being provided at the Bondi property, the guardian should have power to make decisions regarding such services against her stated wishes.

(ac) The Tribunal then turned to the identity of the guardian. It set out the matters to be considered and noted the proposal to have the first and second Plaintiffs appointed. It concluded that they would not be "suitable persons" because:

(i) they did not accept the diagnosis of schizophrenia preferring their own diagnosis and proposed treatment;

(ii) they were highly suspicious of, and unco-operative with, those treating the third Plaintiff;

(iii) the Tribunal was not confident of their assertion that they could control the third Plaintiff's hoarding behaviour;

(iv) they maintained their objection to inspection of the Bondi property on the ground of "privacy";

(v) they, too, were enmeshed in ongoing litigation with the Council, including in an appeal to the Court of Appeal; there was in this litigation, a potential for a conflict of interest.

(ad) In the circumstances, there was no alternative but to appoint the Public Guardian.

(ae) Because any treatment was likely to take some time, and so that any treatment should be given a real chance of working, the guardianship order should be for three years.

Before leaving this topic, I should identify the written material considered by the Tribunal in coming to its decision on 12 March 2010 (as revealed in the reasons for decision) was:

(a) Guardianship Tribunal Limited Guardianship Order dated 29 November 2000.

(b) Guardianship Tribunal Dismiss FM (Financial Management) Application dated 29 November 2000.

(d) Guardianship Tribunal Order ending Guardianship - Review dated 7 May 2001.

(e) Guardianship Tribunal Reasons for Decision Review dated 4 June 2001.

(f) Application of Ms Lynne W dated 2 November 2009.

(g) Report of Ilana H dated 16 September 2009.

(h) Report dated 9 October 2009.

(i) Report of Kirstin H dated 24 September 2009.

(j) Report of Lynne W dated 30 October 2009.

(k) Report of Dr Mattthew L dated 28 October 2009.

(l) Letter from Dr Kerry J dated 15 January 2008.

(m) Report of Dr Kerry J dated 3 November 2009.

(n) Letter from Centrelink dated 8 October 2009.

(o) Letter from Mr W dated 9 November 2009.

(p) Legalink Title Search dated 30 April 2009.

(q) Photographs (undated)

(r) Statement of Service of Lynne W dated 25 November 2009.

(s) Report of Mr W dated 27 November 2009.

(t) Letter from NSW Trustee dated 25 November 2009.

(u) Guardianship Tribunal Hearing Report dated 2 December 2009.

(v) Letter from first Plaintiff (undated).

(w) Affidavit of Sally C dated 1 May 2007.

(x) Affidavit of Stephen V dated 9 March 2009.

(y) Letter from NSW Trustee & Guardian dated 15 January 2010.

(z) Statement of Service of Lynne W dated 18 January 2010.

(aa) Report of Mr Val T dated 28 January 2010.

(ab) Letter of Mr W dated 29 January 2010.

(ac) Letter of Mr W dated 22 January 2010.

(ad) Letter from first Plaintiff dated 2 February 2010.

(ae) Report from Susan G dated 3 February 2010.

(af) Report of Ruth K dated 3 February 2010.

(ag) Guardianship Tribunal Hearing Report dated 4 February 2010.

(ah) Report of Dr Matthew L dated 17 November 2009.

(ai) Statement of Service of Lynne W dated 12 February 2010.

(aj) Letter from NSW Trustee & Guardian dated 12 February 2010.

(ak) Guardianship Tribunal Single Member - Appointing Separate Representative dated 19 November 2009.

(al) Guardianship Tribunal Financial Management Application dated 4 December 2009.

(am) Guardianship Tribunal - LGO - Guardianship application dated 4 December 2009.

(an) Guardianship Tribunal Financial Management Order dated 4 December 2009.

(ao) Guardianship Tribunal Guardianship Order dated 4 December 2009.

(ap) Guardianship Tribunal Reasons for Decision - Guardianship and Financial Management dated 4 December 2009.

(aq) Guardianship Tribunal Single Member - Appointing Separate Representative dated 14 January 2010.

(ar) Guardianship Tribunal Guardianship Review dated 8 February 2010.

(as) Guardianship Tribunal Legal Representation dated 8 February 2010.

Finally, it was stated in the reasons for decision:

"The Report dated 17 February 2010 prepared for this hearing by Jane S, Case Officer at the Tribunal, was made available to the Tribunal and those attending the hearing."

A copy of very few of these documents formed part of the evidence on the appeal.

The Guardianship Tribunal

Historically, guardianship and financial management jurisdictions had a predominant purpose of the protection of the person with disabilities. Modern guardianship and financial management legislation, however, seeks to strike a balance between providing necessary protection, whilst also promoting empowerment of people with disabilities and minimum intrusion on their rights and liberties: ACJ, Re [2007] NSWGT 15 at [46].

The Tribunal is a creature of statute. It exercises a protective jurisdiction and facilitates substitute decision-making by hearing and determining applications for the appointment of guardians and financial managers for adults with decision-making disabilities.

The Tribunal's jurisdiction is not at large but must be exercised in accordance with its establishing legislation. It is to the Tribunal that the legislature has committed the primary working out of the Act. The Tribunal was given most, but not all, of the same area of jurisdiction that was within the Supreme Court's jurisdiction.

The Tribunal is an administrative body and not a court, although it has some of the powers and procedures of a court. It has legal authority to affect the rights and interests of the parties to proceedings before it. A person may be represented by an Australian legal practitioner: s 58(1) of the Act. A party to proceedings may call, and examine, any witness, cross-examine any witness called by another party, give evidence on oath, produce documents and exhibits to it, and "adduce, orally or in writing, to the Tribunal such matters as are relevant to the proceedings, and address the Tribunal on such matters": s 59. The Tribunal may compel any person to appear before it to give evidence, or to produce any document that is relevant: s 60. It may require questions to be answered that are reasonably related to the proceedings.

The member presiding at a sitting of the Tribunal is to "cause a record to be kept of any decision made at the sitting and of the reasons for that decision": s 71. The reasons for the Tribunal's decision with respect to proceedings before it must be set out in writing and signed by the presiding member: s 68.

The Guardianship Act - the Legislative Scheme

In s 3(1) of the Act, a "person in need of a guardian" is defined as meaning "a person who, because of a disability, is totally or partially incapable of managing his or her person".

Section 3F of the Act identifies each of the persons who is a party to any proceedings before the Tribunal in respect of an application for a guardianship order under this Act as:

"General Principles

(a) the applicant,

(b) the person to whom the application relates,

(c) the spouse, if any, of the person to whom the application relates, if the relationship between the person and the spouse is close and continuing,

(d) the person, if any, who has care of the person to whom the application relates,

(e) the Public Guardian,

(f) any person whom the Tribunal has joined as a party under section 57A."

In respect of a review of a guardianship order, the following persons are identified as parties under Section 3F:

"(a) the person, if any, who requested the review,

(b) the person the subject of the order,

(c) the spouse, if any, of the person the subject of the order, if the relationship between the person and the spouse is close and continuing,

(d) the person who has care of the person the subject of the order,

(e) the guardian appointed under the order,

(f) any person whom the Tribunal has joined as a party under section 57A."

Section 4 of the Act provides:

"General Principles

It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles:

(a) the welfare and interests of such persons should be given paramount consideration,

(b) the freedom of decision and freedom of action of such persons should be restricted as little as possible,

(c) such persons should be encouraged, as far as possible, to live a normal life in the community,

(d) the views of such persons in relation to the exercise of those functions should be taken into consideration,

(e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,

(f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,

(g) such persons should be protected from neglect, abuse and exploitation,

(h) the community should be encouraged to apply and promote these principles."

The section, it seems to me, not only states the intended objects of the Act, it requires any person exercising functions under that Act, to observe those principles. However , observing, or recognising, the principles in s 4 of the Act does not mean that, where discretion exists, the Tribunal must make a particular decision or that such a decision requires complete freedom to be granted to the person. The phrases "as little as possible" in (b) and "as far as possible" in (c) support this view.

Section 3F of the Act identifies persons as a party to proceedings before the Tribunal. In respect of the applications in the present case, parties include the applicant (i.e. the fourth Defendant), the person to whom the application relates (the third Plaintiff), the spouse, if any, of the person to whom the application relates, if the relationship between the person and the spouse is close and continuing (in this case not a party, although it was suggested that he should have been), the persons, if any, who have care of the person to whom the application relates (the first and second Plaintiffs) and the Public Guardian and the NSW Trustee.

The Tribunal is given jurisdiction by Part 3 Division 2 of the Act to make a guardianship order.

An application for a guardianship order in relation to a person may be made by the person, or "by any other person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person" (s 9(1) of the Act). (There was no question raised, in the present case, of the application to the Tribunal, having been made by such a person.)

Section 10(1) of the Act requires the applicant for a guardianship order, as soon as practicable after the application has been made, to cause a copy of the application to be served on each party (other than the applicant) to the proceedings before the Tribunal in respect of the application.

Section 10(1A) requires the Tribunal before conducting a hearing into the application, to cause a notice specifying the date on which, and the time and place at which, the Tribunal will conduct the hearing to be served on each party to the proceedings.

The Tribunal's jurisdiction to make a guardianship order is set out in s 14 of the Act and may only be made after conducting a hearing into any application made to it for a guardianship order in respect of a person.

But, before a guardianship order may be made, it must be established that:

(a) the person has a disability; and

(b) because of that disability, the person is totally, or partially, incapable of managing his, or her, person.

See: IF v IG [2004] NSWADTAP 3 at [24]; DL v Public Guardian and Ors [2008] NSWADTAP 6 at [6].

Section 3(2) of the Act states that a reference to a person with a disability is a person:

"(a) who is intellectually, physically, psychologically or sensorily disabled,

(b) who is of advanced age,

(c) who is a mentally ill person within the meaning of the Mental Health Act 2007 , or

(d) who is otherwise disabled,

and who, by virtue of that fact, is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation."

If satisfied of the relevant matters, the Tribunal determines whether to exercise its discretion to make a guardianship order. In that determination, the Tribunal has regard to each of the factors listed in s 14(2), namely:

"(a) the views (if any) of:

(i) the person, and

(ii) the person's spouse, if any, if the relationship between the person and the spouse is close and continuing, and

(iii) the person, if any, who has care of the person,

(b) the importance of preserving the person's existing family relationships,

(c) the importance of preserving the person's particular cultural and linguistic environments, and

(d) the practicability of services being provided to the person without the need for the making of such an order."

Consequently, the first step is for the Tribunal to ask itself whether the subject person is a "person in need of a guardian". The second step is for the Tribunal to decide whether to exercise its discretion to make a guardianship order.

In IF v IG , at [26], it was stated that the factors in s 14(2) are mandatory considerations and all must be considered in making the Tribunal's determination, there being no hierarchy or weighting of any of the factors referred to. It was said:

"26. [T]he Guardianship Tribunal is required to exercise a structured discretion. The Guardianship Tribunal must consider all of the matters set out in s 14(2) before exercising its discretion. The use of the words "shall have regard to" in s 14(2) is a clear indication of the legislative intent that the Guardianship Tribunal is obliged to consider all of the matters set out in that sub-section before exercising its discretionary power. Those matters have no hierarchy or weighting. Each is a mandatory consideration. The Guardianship Tribunal must determine in every case whether one or more of those considerations will be given greater weight than others. Whilst each is a mandatory consideration, in some cases there may be no evidence of one or more of them. In such circumstances it may be prudent for the Guardianship Tribunal to record that fact.

27 Whilst the Guardianship Tribunal must consider all of the matters in s 14(2), it is not limited to considering those matters before determining whether to make a guardianship order. The Guardianship Tribunal is clearly entitled to identify and be influenced by relevant matters other than those set out in s 14(2) when making its decision.

28 In many cases it will be necessary for the Guardianship Tribunal to undertake a balancing exercise for its consideration of some of the matters in s 14(2), as well as any other relevant matters, may cause it to believe that a guardianship order should be made, whilst consideration of other matters may cause it to hold a contrary opinion. When undertaking such a balancing exercise the Guardianship Tribunal may be guided by one or more of the general principles that underpin the legislation which are set out in s 4 of the Guardianship Act 1987."

In Ms A v Public Guardian & Ors [2006] NSWADTAP 55, at [14], it was said that the approach adopted by Giles JA in Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181, at 201, to the words "shall have regard to" means that there must be a process of evaluation and requires more than simply adverting to the factors, before it can be said that the Tribunal has fulfilled its statutory obligation.

No doubt, there will be differing amounts of evidence about the different factors in s 14(2) and, in some cases, there may be no evidence about one, or more, of them.

There is power in the Tribunal to make a temporary guardianship order, which it, in fact, did, in this case, on 4 December 2009.

There is no separate provision conferring on the Tribunal power to make an order appointing any particular person as a guardian. Section 15 (3) of the Act recognizes that the Public Guardian should not be appointed as a person's guardian if an order can be made appointing some other person.

It has been said that "the proper meaning to be given to the section is to read it as saying that the Public Guardian should not be appointed in circumstances in which an order can properly be made in favour of another person. That requires not only that the person be willing, reliable and responsible, but that the appointment will result in the policy considerations and principles set forth in the Act being given effect": W v G [2003] NSWSC 1170; (2003) 59 NSWLR 220, at [25].

Section 16(1)(a) of the Act provides that a "guardianship order shall appoint a person who is of, or above, the age of 18 years as the guardian of the person of the person under guardianship". If a private guardian is to be appointed, that person must have a personality generally compatible with the personality of the person under guardianship; have no undue conflict of interest (particularly financial) with those of the person; and be able and willing to exercise the functions of the order.

Section 17 of the Act provides:

"Guardians

(1) A person shall not be appointed as the guardian of a person under guardianship unless the Tribunal is satisfied that:

Here, it was clear that the third Plaintiff was opposing the orders; the other Plaintiffs were asserting that there was no need for an order for guardianship or financial management to be made, or if it was, then they should be appointed as guardians and financial managers. For reasons to which I shall come, nothing would have been lost by granting the adjournment, and meantime, investigations might have been able to be carried out to ascertain whether there was any merit in their submissions.

The issue of the continuation of the legal proceedings with the Council, in my view, was a relevant factor to be considered. A risk of financial loss, by reason of lack of competence, is referred to as part of the second limb of the test in PY v RJS at 702, namely that: "by reason of that lack of competence there is shown to be a real risk that either: ... or (ii) that such moneys or property which he or she may possess may be dissipated or lost".

However, the fact that the Plaintiffs were in litigation with the Council, that they were defending certain proceedings and they had lodged an appeal, does not necessarily establish a risk of financial loss based on the lack of capability of the third Plaintiff. It is not suggested that the Tribunal was able to come to a clear view on the extent of such a risk other than in determining that if there was a judgment debt, interest would be accruing until the date of payment.

In this case, the Tribunal had a degree of flexibility in adapting its procedures to the exigencies of the case. For example, the interests of the third Plaintiff could have been protected by the appointment of an interim financial manager, as was done with the limited appointment of the guardian: s 25H of the Act.

In the circumstances, I am satisfied that the Plaintiffs are correct in their submission that there was a failure to accord them procedural fairness in proceeding on 4 December 2009, at least in relation to the appointment of the financial manager. In my view, the procedure that was followed on 4 December 2009, in relation to the appointment of the financial manager of the third Plaintiff, denied the Plaintiffs an opportunity to fully address, and, if able, to contradict, the material that was submitted in support of the application for the appointment of the financial manager.

Whether what I have said is applicable to the Tribunal's decision regarding the appointment of the guardian is more difficult, firstly, because in the December 2009 decision, it was a hearing for the appointment of an interim guardian with limited powers. Secondly, there was, in effect, an adjournment granted to the Plaintiffs to enable the review that was granted and which review subsequently occurred. This was done, as stated, to provide procedural fairness.

However, it is to be remembered that one complaint made by the first and second Plaintiffs is that they had disclosed that they wished to obtain alternative medical opinions on the third Plaintiff's condition and mental state, which opinion, or opinions, may have resulted in a different order for guardianship being made. They also wanted to obtain other evidence going to their relationship with the third Plaintiff which evidence might have been relevant to who was appointed.

Bearing in mind the time of the year, and the fact that the third Plaintiff was a patient in hospital, the period granted, in my view, was too short to reasonably enable them to obtain alternative medical opinion(s). It was, however, probably sufficient to have enabled them to obtain the evidence of friends or neighbours.

There seems to have been no urgency that could not have been cured, by the interim order for guardianship being for a longer period, with the result that the review hearing would have occurred later. To not allow the Plaintiffs a longer period to gather the evidence that they believed they required to oppose the application for a final order for guardianship, in my view, was procedurally unfair.

It follows, although there was a review of the guardianship order, that the first and second Plaintiffs were not given a sufficient opportunity to gather the necessary evidence to allow them to put forward what they wished to in opposition to the making of a final guardianship order or in respect of the review hearing in early February 2010.

Finally, before leaving this topic, I note that at the hearing in February 2010, one of the additional documents relied upon was the report of the Co-Ordinator of the Severe Domestic Squalor Project, Catholic Community Services. There is no evidence that a copy of this report was provided to any of the Plaintiffs prior to the review hearing, or at all.

Another matter raised by the Plaintiffs related to the appointment and role of the separate representative and his failure to seek to obtain independent medical evidence about the mental state of the third Plaintiff, where it appeared to be an issue being raised by the Plaintiffs at the hearing on 4 December 2009.

In relation to the Tribunal's decision on the appointment of the separate representative of the third Plaintiff, there were no reasons given at the time the appointment was made. The separate representative was appointed, however, to represent her interests. His role was "to present the views of the person whenever possible and also other relevant information and submissions to assist the Tribunal in making decisions under" the Act. However, "the separate representative is not bound by the views of the person", does "not act on the instructions of" the person. and "is not an advocate for the interests of other parties to the application": Exhibit A 20.

The appointment of counsel as the separate representative of the third Plaintiff, on the initial hearing of the application that affected her rights, cannot be the subject of valid complaint. It is clear from what has been written above, that he was not the mere mouthpiece of the third Plaintiff. In any event, he ensured that the Tribunal was aware of her views.

In relation to his appointment, I cannot see that it was a matter about which the Plaintiffs can complain. Rather than denying her the opportunity to be heard, his appointment was to ensure that the third Plaintiff would be given an ample opportunity to be heard.

However, there is a further objective matter that is relevant to all of these issues. The Tribunal, in the reasons for decision of 12 March 2010, referred to the fact that the third Plaintiff's separate legal representative (Mr Barry) and counsel who had sought, and who was granted leave to represent her, had agreed that the third Plaintiff was able to give instructions to him. The acceptance of their views as to the capacity of the third Plaintiff in that regard demonstrated that at the review hearing there may have been a reasonable factual basis for an alternative view of her mental state that might have required it to consider the need for another medical opinion.

(I have not ignored the other statement in the reasons as to the third Plaintiff's instructions regarding being able to "work off' her debts to Waverley Council. However, that would also be a matter that would have been able to be investigated.)

This objective finding may also have been relevant to the issue of the identity of the person, or persons, to be appointed as financial manager and/or the guardian. The third Plaintiff had stated that, if a financial manager and/or guardian were to be appointed, which she disputed, she wished the first and second Plaintiffs to be appointed. There was also some evidence that they had, in November 2000, been appointed as her attorneys (subject to certain unidentified limitations).

Having reached this view on the ground relating to procedural unfairness, it is necessary to deal with the other grounds of appeal only briefly. No disrespect is intended in doing so.

Bias

As to ground (v), a perusal of the Tribunal's reasons for decision, in either case, discloses no ground for concluding there was actual, or ostensible, bias. There is nothing in either of the reasons for decision that result in the conclusion that "the parties or the public might entertain a reasonable apprehension that [the Tribunal] might not bring an impartial and unprejudiced mind to the resolution of the questions involved ...": Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-4; see also Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 344 (per Gleeson CJ, McHugh, Gummow and Hayne JJ).

Nor can I find any basis for the view that members of the Tribunal were "so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented": Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 532 (per Gleeson CJ and Gummow J).

To the contrary, the members of the Tribunal seem to have carried out the task dispassionately, and explicitly considering what was thought to be in the best interests of the third Plaintiff. Also, they considered, at least in relation to guardianship, the rights of the first and second Plaintiffs.

Whilst the Plaintiffs are unhappy with the Tribunal's decision, they are required to demonstrate more than that. They must establish enough to satisfy me that a reasonable, detached observer could apprehend the Tribunal lacked independence and objectivity. To not accept the version of events, or all of the evidence given by one, or other, of the Plaintiffs, or to give unequal weight to that evidence, does not demonstrate bias.

Furthermore, the suggestion made by the first Plaintiff in submissions that the Tribunal "showed bias in that it allowed the other side to speak longer and curtailed one side repeatedly but did not curtail the other side" is without evidentiary foundation. As stated previously, the Plaintiffs did not tender any transcript of the Tribunal proceedings which would enable me to further consider, or make a finding about, what is alleged. Accordingly, there is no basis for this submission.

The Plaintiffs have not satisfied me of any bias in the Tribunal.

Failure to have regard to the views of the third Plaintiff

As stated previously, in considering whether or not to make a guardianship order, the Tribunal is required to have regard to the views of the subject person: s 14(2)(a)(i). The Tribunal recorded the third Plaintiff's views in its reasons for decision of 12 March 2010 and noted that those views were not always consistent. Merely because it did not make a decision that reflected the views of the third Plaintiff does not mean that it did not take those views into consideration. It is not an error of law to make a decision that is inconsistent with those views.

In any event, I am satisfied that the Tribunal took the third Plaintiff's views into consideration even though the decision did not accord with those views. Accordingly, this ground of appeal is not established either.

Furthermore, the requirement to observe, or be guided by, identified principles, does not require the Tribunal, where it is given a discretion, to come to a particular conclusion. As has been pointed out, by way of example, observing the principle in s 4(b) of the Act does not necessarily mean that every person must be given complete freedom in relation to their personal, domestic and financial affairs: WL v NSW Trustee and Guardian at [76]; OT v OU .

Curtailing of Cross-Examination

Similarly, that the cross-examination of witnesses by the first and second Plaintiff was curtailed (assuming that it was), does not demonstrate an error of law. Albeit it was said in the context of Supreme Court litigation under the Family Provision Act 1982, what Palmer J said in Tobin v Ezekiel [2008] NSWSC 1108 at [37] applies equally to a matter in the Tribunal:

"37 Litigants are entitled to a fair opportunity to present their case; that does not mean that they can take as long as they like in doing so. The judicial time and administrative [sic] of this State's courts are strained by the press of litigants seeking to have their cases heard quickly and efficiently. No one litigant has the right to insist that his case will consume as much of the Court's time and resources as his own pockets will bear."

In relation to other parts of the Act to which the Plaintiffs referred as not having been considered, I am satisfied that the Tribunal did, in fact, consider what it was required to. The Tribunal demonstrated that it had observed those principles by referring to them, expressly, in the written reasons for decision.

Unconstitutionality

I enquired of the first and second Plaintiffs the basis for the ground of unconstitutionality. They submitted that if the Tribunal obtained evidence illegally, it could not be constitutional. The illegally obtained evidence was said to be an income statement of 8 October 2009 relating to the third Plaintiff from Centrelink. The document, which was tendered by the Plaintiffs, related only to information such as her date of birth, whether she is "partnered", whether she receives the maximum rate age pension, the amounts received and when last paid.

It was said that the document had been obtained from their house "and was stolen by someone at the hospital, presumably the social worker or applicant" (T73.33 - 73.39).

Section 55 allows the Tribunal to take into account relevant documentary material provided by a party. A party may produce documents and exhibits to the Tribunal pursuant to s 59.

Having considered the document the subject of this ground of appeal, I am of the view that even if the Plaintiffs' submission regarding the circumstances in which the document was obtained are correct (about which I express no view), there was nothing in the document that could have prejudiced the Plaintiffs. The document did no more than state the true factual position and the matters it contained could not have been seriously in dispute. Accordingly, I do not think that there is any merit in this ground of appeal.

Other Matters

The Plaintiffs clearly disagree with the Tribunal's decisions as to the making of a guardianship and financial management orders as well as to the appointment of the Public Guardian and the NSW Trustee.

In its reasons for decision, the Tribunal, correctly, noted that it had to be satisfied of the three matters set out above before it could make a financial management order. There is nothing in the reasons for decision that suggests that it erred in the way it characterised the relevant legal tests, or applied those tests to the facts as found in relation to the third Plaintiff.

In each of its reasons for decision, the Tribunal also, correctly, identified what needed to be established before a guardian could be appointed. The same points as made in the previous paragraph may be made in respect of the reasons for decision on the guardianship issue.

However, in relation to the appointment of the Public Guardian as the guardian of the third Plaintiff, I have earlier referred to s 15. In W v G , Windeyer J said:

"15 Restrictions on Tribunal's power to make guardianship orders

...

(3) A continuing guardianship order appointing the Public Guardian as the guardian of a person under guardianship shall not be made in circumstances in which such an order can be made appointing some other person as the guardian of the person.

20 The Tribunal referred to this in its second decision. It is because the appeal raises questions of parties and the proper application of s 15(3) that I would grant leave to appeal if that were necessary. These are matters of general importance as opposed to the simple questions of fact, where it is undesirable that the court reconsider decisions of fact reasonably open to the Tribunal: K v K [2000] NSWSC 1052; C v C [2001] QSC 126. In any event I consider the s 15(3) issue raises questions of law on its proper interpretation in light of s 4 of the Act."

The reasons for decision on the review stated the basis of the conclusion regarding the appointment of the Public Guardian. Importantly, Windeyer J, in determining the s 15(3) issue, also said:

"25 ... There would be a considerable number of cases where no person would be available to be appointed. An example might be a disabled, destitute person with no friend or relative. Such a case might lead inevitably to the appointment of the Public Guardian. Nevertheless appointment of the Public Guardian should not, I think, be restricted to such cases. I consider that the proper meaning to be given to the section is to read it as saying that the Public Guardian should not be appointed in circumstances in which an order can properly be made in favour of another person. That requires not only that the person be willing, reliable and responsible, but that the appointment will result in the policy considerations and principles set forth in the Act being given effect. ...

26 While s15(3) must be interpreted within the context of the Act and in accordance with its principles, it must be given effect within those bounds. In Lunacy and Mental Health proceedings it has always been the policy to appoint a member of the family as committee or guardian of the person if that were possible. The policy is continued under the Act which created the office of Public Guardian. Just because a decision is required about accommodation and there is some dispute about this does not mean that a close family member holding one view ought not to be appointed. On the other hand if the Tribunal considered the evidence established that such a decision was likely not to be in the interests of the person under guardianship then the person who would make such a decision would not be a person who could properly be appointed under s15(3). In other words what is described as a "contest" is not sufficient reason not to appoint a person otherwise appropriate as guardian. ... the Tribunal would need to decide whether that fact meant that Mrs W could not properly be appointed so that the appointment of the Public Guardian was authorized pursuant to s15(3).

27 This is not a case of two persons entitled to be parties contending for different appointments. It is a case of Mrs W, as a family member and as a party because she commenced the proceedings, being brought into or considered as in contest with Ms M, who is not a party and is not applying for guardianship, but who has strong views in opposition to the appointment of Ms W. While I would not wish to be thought to be saying that the Tribunal proceedings should be made unnecessarily formal, I do think it is necessary that the standing of people whose opinions seem to be given considerable weight, is clearly set out. If that is not done, then it seems to me the Tribunal may be seen to be giving undue weight to the views of what in law might be termed "interfering bystanders", although I am not saying that to be the position here. If Mrs C had sought to be made a defendant in these proceedings before me I think it is likely I would have made such an order. Ms M was given the opportunity to seek that she be made a party to these appeal proceedings but stated that she did not wish to become a party. In any event, it is unlikely that I would have joined her because I would not have considered it would have been appropriate for her to be a party before the Tribunal. I should say, however, that I have no reason to think that Ms M, in taking the steps she had taken up to date, has not been acting in what she considers to be the best interests of Mrs G, although in truth she is probably putting more emphasis on the interests of Mrs C. I should add here that there are no other contestants for appointment. Mr B does not seek appointment; Mrs C does not seek appointment and in any event it would not be appropriate to appoint her; Ms M does not seek appointment and in any event would not be appointed in light of the claim by Mrs W."

In my view, subject to one matter, the same comments may be made in this case. Here, as between the Plaintiffs, there was unanimity seeking the appointment of the first and second Plaintiffs. They had been the carers of the third Plaintiff for some time.

One of the matters that caused the Tribunal concern, as it has caused me concern, is their attitude to the inspection of the Bondi property. I do not accept, as a reasonable response, the argument that to permit such an inspection would impinge upon their privacy, or, more importantly, the privacy of the third Plaintiff. Assuming a right to privacy, that right, in a case such as this, may be protected where it is interfered with in an arbitrary, or unlawful, manner. In this case, I do not consider an inspection of the Bondi property, on one occasion, and for a specific purpose, would interfere with their, or her, privacy in such a manner. To the contrary, an inspection would be reasonable and it would in accordance with the provisions, aims and objectives of the Act.

Nor do I accept that to support the third Plaintiff's refusal to consent is justified upon the basis that she does not have to consent and that not doing so demonstrates her autonomy. Whilst it is true that she does not have to consent, an unreasonable refusal to do so, in the circumstances of this case, was considered and resulted in a different order to one that may have been made if the Tribunal had been satisfied that the environment to which she sought to return was safe and secure. In this regard, the paramount consideration was, and remains, the welfare and best interests of the third Plaintiff.

In the circumstances, I am not satisfied that the conclusion reached by the Tribunal on the appointment of the Public Guardian was in error.

Nor am I satisfied, that the failure to appoint the first and second Plaintiffs was an error. They did not appear to comprehend the importance of the Tribunal being satisfied of the condition of the Bondi property before the third Plaintiff would be permitted to return to live there.

In relation to the receipt of evidence, what I have said above satisfies me that more time should have been allowed to the first and second Plaintiff to consider, and respond to, the evidence that was to be relied upon. To proceed to a hearing relying upon evidence that could affect the decision, in each case, and identifying it at the hearing, does lead to the view that a copy of it ought to have been provided and that a more reasonable time should have been allowed to the first and second Plaintiffs to consider and respond to it.

Otherwise, I do not consider that the receipt of the evidence was in error, as clearly it was relevant to the matters that the Tribunal had to decide.

There is simply no basis for stating that the proceedings in the Tribunal constituted an abuse of process. Similarly, there was no evidence of any "undue influence" (whatever that means in the context of this case) and nothing more needs be said about either ground.

Conclusion and Orders to be made

I conclude that there was an error of law on the part of the Tribunal, as a result of the denial of procedural fairness to the Plaintiffs in respect of the conducting the hearing for the appointment of the financial manager on 4 December 2009. The Tribunal failed to grant an adjournment, which, in all the circumstances, could, and should, have been granted.

Similarly, the review of the guardianship order in February 2010, without having given the first and second Plaintiffs a reasonable opportunity to obtain such evidence in opposition to the application as well as a reasonable opportunity to consider, and respond to, all of the evidence that was to be relied upon in the review application is also an error of law on the part of the Tribunal and demonstrates a denial of procedural fairness.

However, I am satisfied that leave to appeal on any other question should be refused.

The next question is what orders should be made in light of the conclusion that there has been an error of law. In this regard, the Court may make such orders as it thinks appropriate in the light of its decision.

The Plaintiffs have sought an order that the orders made by the Tribunal "be dismissed or, in the alternative, set aside".

Another alternative available is to set aside the orders and remit the matter to the Tribunal for rehearing and re-determination, allowing the Plaintiffs a reasonable opportunity to place all relevant material before the Tribunal. The parties would, where relevant, be permitted to submit fresh evidence to the Tribunal.

This is an alternative that the parties both eschewed, not because of any criticism of the Tribunal, but because of the time it would take to obtain another hearing.

It occurs to me that another alternative is to allow the Plaintiffs to serve the recent medical evidence, allow the Defendants an opportunity to consider that evidence, serve evidence in reply, if thought appropriate, and for this Court to determine whether the third Plaintiff is a person currently in need of a guardian or financial manager and if so, the consequential orders to be made.

Finally, the Plaintiffs should be given the opportunity to ascertain if the litigation with the Council can be resolved.

Before deciding upon what orders should be made, the Plaintiffs should be given a further opportunity to consider permitting an inspection of the Bondi property to ascertain whether it provides a safe and habitable environment to which the third Plaintiff may return if she is otherwise able to do so, or devising another practical method of satisfying the Court that it is a safe place to which the third Plaintiff may return if the Court concludes that is appropriate.

I shall hear further submissions on which of these courses, or any other course, should be followed. The matter is adjourned to a date to be fixed.

The only order I make today is one to extend the time to 30 August 2010, for the bringing of the appeal on the appointment of the Public Guardian as the guardian of the third Plaintiff, the date of the filing of the Summons herein.

**********

Amendments

12 August 2011 - "(Mr Barry) and the solicitor" changed to "(Mr Barry) and counsel"

Amended paragraphs: 271

11 August 2011 - "third Defendant" changed to "third Plaintiff"

Amended paragraphs: 29

Decision last updated: 12 August 2011

Medium Neutral Citation:	EB & Ors v Guardianship Tribunal & Ors [2011] NSWSC 767
Hearing dates:	11, 12 & 13 May 2011
Decision date:	02 August 2011
Jurisdiction:	Equity Division - Protective List
Before:	Hallen AsJ
Decision:	(a) Order that leave is granted for the appeal so far as it relates to the reasons for decision delivered on 12 March 2010. (b) Order that the Summons be stood over to a date to be agreed for further argument on the relief to be given.
Catchwords:	The Plaintiffs appeal the decision and orders made by Guardianship Tribunal for financial management and guardianship in respect of the third Plaintiff, made by the fourth Defendant - Tribunal made orders pursuant to which the third Defendant was appointed financial manager of third Plaintiff's estate, and the second Defendant was appointed guardian of the third Plaintiff.
Legislation Cited:	Guardianship Act 1987 Mental Health Act 2007 NSW Trustee and Guardian Act 2009 Protected Estates Act 1983 Value Added Tax (General) Regulations 1985 (UK)
Cases Cited:	A; Ms v Public Guardian & Ors [2006] NSWADTAP 55 Absolon v NSW TAFE [1999] NSWCA 311 ACJ, Re [2007] NSWGT 15 Aid Society Ltd v Day [1978] 1 CR 437 Aikman v White [1986] STC 1 Association of Architects; Ex parte Municipal Officers Assn; Re (1989) 63 ALJR 298 Attorney General for the State of New South Wales v X (2000) 49 NSWLR 653 Australian Foremen Stevedores Assn v Crone (1989) 20 FCR 377; 98 ALR 276 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Bar-Mordecai v Rotman [2000] NSWCA 123 Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 Carew v Protective Commissioner [2005] NSWADTAP 13 Charlton v Baber [2003] NSWSC 745 Coldham, Re; Ex parte Municipal Officers Assn; (1989) 84 ALR 208 Collection House Ltd v Taylor [2004] VSC 49 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 DL v Public Guardian [2008] NSWADTAP 6 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501 FA v Protective Commissioner [2009] NSWSC 415 FX v NSW Trustee and Guardian (External) [2011] NSWADTAP 5 G v B (NSWSC, 27 May 1992, unreported) Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 GHI (a protected person); Re [2005] NSWSC 581 GM v Guardianship Tribunal; GM v Protective Commissioner [2003] NSWADTAP 59 GS v Protective Commissioner and Guardianship Tribunal [2003] NSWADTAP 52 H v H (NSWSC, 20 March 2000, unreported) Hayman v Griffiths; Walker v Hanby [1988] QB 97 Hill v Repatriation Commission [2005] FCAFC 23, (2005) 218 ALR 251 Hoe v Manningham City Council [2011] VSC 37 Holt v Protective Commissioner (1993) 31 NSWLR 227 Hopkins v Smethwick Board of Health (1890) 24 QBD 712 House v Defence Force Retirement and Death Benefits Authority [2011] FCAFC 72 Hussain v Minister for Foreign Affairs [2008] FCAFC 128; (2008) 169 FCR 241 IF v IG [2004] NSWADTAP 3 Italiano v Carbone [2005] NSWCA 177 J v J [2011] WASCA 126 JAB [2010] WASAT 97 Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 John v Rees [1970] Ch 345 Johnson v NSW Guardianship Tribunal [2009] NSWSC 664 KA v Public Guardian [2004] NSWADTAP 25 Kowalski v Chief Executive Officer of Medicare Australia [2010] FCA 413; (2010) 185 FCR 42 KV v Protective; KW v KV (No 2) [2004] NSWADTAP 48 Livesey v New South Wales Bar Association (1983) 151 CLR 288 Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340; (2004) 141 FCR 346 McD v McD (1983) 3 NSWLR 81 McDonald v Guardianship and Administration Board [1993] 1 VR 521 MH6 v Mental Health Review Board (2009) 25 VR 382 Mahon v Air New Zealand Ltd [1984] AC 808 Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 N v N (NSWSC, 13 March 1997, unreported) Nanschild v Pratt [2011] NSWCA 85 OM v MN [2008] NSWSC 36 Ormwave Pty Ltd v Smith [2007] NSWCA 210; 5 DDCR 180 OT v OU [2010] NSWADTAP 9 P v D1 [2011] NSWSC 257 P v R [2003] NSWSC 819 Public Service Board (NSW) v Osmond (1986) 159 CLR 656 Public Trustee v Blackwood [1998] 8 Tas R 256 PY v RJS [1982] 2 NSWLR 700 P9/2000 [2011] NSWSC 49 R; Re [2000] NSWSC 886 Rajski v Scitec Corporation Pty Ltd (NSWCA, 16 June 1986, unreported) Refugee Review Tribunal; Re; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 S v S [2001] NSWSC 146 Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331 Slinko v Guardianship And Administration Tribunal [2006] 2 Qd R 279 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Source and Resources Pty Ltd v Department of Environment, Climate Change and Water [2010] NSWLEC 228 Stead v State Government Insurance Commission (1986) 161 CLR 141 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 SZLPN v Minister for Immigration and Citizenship [2010] FCA 202 TC v Public Guardian [2006] NSWADTAP 15 Titan v Babic (1994) 49 FCR 546 Tobin v Ezekiel [2008] NSWSC 1108 Tomasevic v Toll Holdings Ltd [2011] VSC 231 Tomko v Palasty (No 2) [2007] NSWCA 369 Towie v Medical Practitioners Board of Victoria [2008] VSCA 157 UP v NSW Trustee and Guardian [2010] NSWADTAP 69 W v G [2003] NSWSC 1170; (2003) 59 NSWLR 220 Weal v Bathurst City Council [2000] NSWCA 88 WL v NSW Trustee and Guardian [2011] NSWADTAP 22 World Best Holdings Ltd v Sarker [2004] NSWSC 935 XA v NSW Trustee and Guardian [2011] NSWADTAP 20 XYZ v State Trustees Ltd [2006] VSC 444 Chen v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 591
Texts Cited:	Aronson, Dyer, Groves, Judicial Review of Administrative Action, 4th ed, Law Book Co 2009 Oxford English Dictionary
Category:	Principal judgment
Parties:	EB (first Plaintiff) LB (second Plaintiff) MB (third Plaintiff) Guardianship Tribunal (first Defendant) Public Guardian (second Defendant) NSW Trustee & Guardian (third Defendant) LW (fourth Defendant)
Representation:	First, second and third Plaintiffs not legally represented NSW Trustee & Guardian (second and third Defendants) Other Defendants removed as Defendants
File Number(s):	P38/2010 (2010/288147)