GM v Guardianship Tribunal & Ors; GM v Protective Commissioner & Ors
[2003] NSWADTAP 59
•11/25/2003
Appeal Panel - External
CITATION: GM v Guardianship Tribunal & Ors; GM v Protective Commissioner & Ors [2003] NSWADTAP 59 PARTIES: APPELLANT (1st Decision)
GM
1st RESPONDENT
Protective Commissioner
2nd RESPONDENT
GN
3rd RESPONDENT
GO
4th RESPONDENT
Guardianship Tribunal
APPELLANT (2nd Decision)
GM
1st RESPONDENT
Protective Commissioner
2nd RESPONDENT
GN
3rd RESPONDENT
GO
4th RESPONDENT
GP
5th RESPONDENT
Guardianship TribunalFILE NUMBER: 038003; 038004 HEARING DATES: 17/10/03 SUBMISSIONS CLOSED: 10/17/2003 DATE OF DECISION:
11/25/2003DECISION UNDER APPEAL:
Guardianship Tribunal 2003/2437; 2003/2438BEFORE: Hennessy N - Magistrate (Acting President); Britton A - Judicial Member; Green J - Member CATCHWORDS: Adverse evidence - Financial management order - making - Guardianship order - making - Opportunity to respond to adverse evidence - Procedural fairness MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: C/25502 DATE OF DECISION UNDER APPEAL: 06/03/2003 LEGISLATION CITED: Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Decisions Tribunal Act 1997
Administrative Decisions Tribunal Rules (Transitional) Regulation 1998
Child Care Act 1980
Guardianship Act 1987
Protected Estates Act 1983CASES CITED: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Annetts v McCann (1990) 170 CLR 596
Ansell v Wells (1982) 43 ALR 41
Attorney General for New South Wales v Quin (1990) 170 CLR 1
Bakewell v MacPherson (unreported, SA Supreme Court (full Ct), 25 September 1992
Chen Zhen Zi v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 591
Christou & Ors v Guardianship Tribunal & Ors (unreported, Supreme Court, Windeyer J, PO43/01, 17 September 2002)
Johns v Australian Securities Commission (1993) 178 CLR 408
Kioa v West (1985) 159 CLR 550
Moore v Guardianship and Administration Board & Anor [1990] VR 902
Muin v Refugee Review Tribunal (2002) 76 ALJR 966
NIB Health Funds Ltd v Private Health Insurance Administration Council (2002) 115 FCR 561R v Australian Broadcasting Tribunal;
ex parte Hardiman (1980) 144 CLR 13R v London Borough of Wandsworth;
Ex parte P [1989] 1 FLR 387
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
Re Pergamon Press Ltd [1971] CH 388Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247
Re Refugee Tribunal; ex parte Aala (2000) 75 ALJR 52REPRESENTATION: APPELLANT (1st Decision)
In person
APPELLANT (2nd Decision)
In person(1st Decision)
(2nd Decision)
1st RESPONDENT
No appearance
2nd RESPONDENT
M Forsyth, solicitor
3rd RESPONDENT
E Bryant, solicitor
4th RESPONDENT
E Cho, legal officer
1st RESPONDENT
No appearance
2nd RESPONDENT
M Forsyth, solicitor
3rd RESPONDENT
E Bryant, solicitor
4th RESPONDENT
No appearance
5th RESPONDENT
E Cho, legal officerORDERS: 1 The limited guardianship orders made by the Tribunal on 3 June 2003 are affirmed; 2 The financial management orders made by the Tribunal on 3 June 2003 are set aside; 3 The financial management matter is remitted to be heard and decided again by the Tribunal with the hearing of further evidence; 4 Order No 2 will not come into effect until the Guardianship Tribunal has reheard and re-decided the matter
Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.
Section 126 provides
(1A) This section applies only to the following:(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:
(a) proceedings in the Community Services Division of the Tribunal,
(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,
(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.
(a) who appears as a witness before the Tribunal in any proceedings, or
(b) to whom any proceedings before the Tribunal relate, or
(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,
Introductionwhether before or after the proceedings are disposed of.
Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.
(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.
(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.1 The names of parties to these proceedings have been anonymised to protect their privacy. The names of witnesses have not been anonymised.
2 GO is an 86 year old woman with dementia who is currently living in a nursing home. Her son, GM, has appealed to the Appeal Panel of the Administrative Decisions Tribunal against two decisions of the Guardianship Tribunal (the Tribunal) both dated 3 June 2003. The first decision was to place GO under continuing guardianship for six months and to appoint the Public Guardian as her guardian. The Public Guardian is authorised to make decisions on her behalf about her accommodation, health care and medical and dental treatment. The second decision was to order that GO’s estate be subject to management under the Protected Estates Act 1983 and that the Protective Commissioner be appointed as manager. No time limit was placed on that order. GM submitted that the Tribunal should have appointed him as his mother’s guardian and financial manager.
3 The two decisions of the Tribunal under appeal were heard and determined together during the course of the same proceedings before the Appeal Panel. In these reasons we refer to the first decision as the “guardianship decision” and the second decision as the “financial management decision”.
Background
4 Some time in 1999, GM, who is a single man, moved into his mother’s house to look after her. On 6 September 2001, following a call from an informant, police visited the home. GM was taken to the police station and, later on the same day, police officers applied for, and were granted, an Apprehended Violence Order (AVO). The order prevented GM from having access to his mother. Mr Murphy, who was GO’s solicitor, arranged for her to be admitted to a nursing home. On 14 November 2001, just after the AVO was granted, GO signed a power of attorney appointing Rabbi GP as her attorney. Pursuant to that power Rabbi GP arranged for GO’s investment unit to be renovated and sold. The proceeds of the sale were used to pay for GO’s care in the nursing home. GM was not happy with the manner in which Mr Murphy or Rabbi GP handled his mother’s financial affairs or with the AVO having being made.
5 The AVO was varied in April 2003 to allow GM to visit his mother at the nursing home by appointment for an hour at a time. On 6 May 2003 GM went to the nursing home with his solicitor and arranged for GO to sign a second power of attorney appointing him as his mother’s attorney. The AVO was finally revoked on 9 July 2003. Since the Tribunal hearing on 3 June 2003, GO has been in hospital. Following consultation with GM, the Protective Commissioner arranged for GO to move to a new nursing home which is closer to where GM lives.
Jurisdiction and powers of the Appeal Panel
6 The Appeal Panel’s jurisdiction to hear external appeals comes from s 67A of the Guardianship Act 1987 (the Act) and s 118A of the Administrative Decisions Tribunal Act 1997 (ADT Act). An external appeal may be made as of right on any question of law or by leave on any other ground. (Sections 118B(1) of the ADT Act.) As well as identifying questions of law, GM sought leave to appeal against the merits of the decisions.
7 The Appeal Panel may make such orders as it thinks appropriate including affirming or setting aside the Tribunal’s orders and remitting the matter to be heard and decided again. (Section 118C of the ADT Act.)
Parties and representation
8 The parties to proceedings before an Appeal Panel include the appellant and anyone else who was a party to the proceedings before the Tribunal. (Section 67(2A)(d) of the ADT Act and rule 41A(1) of Schedule 1 to the Administrative Decisions Tribunal Rules (Transitional) Regulation 1998 - “the Regulation”.) The Tribunal found that GM was a party to the proceedings. GM represented himself before the Appeal Panel. While the Protective Commissioner is also a party to the appeal, he chose not to play any role in the proceedings.
9 The Tribunal itself is entitled to be a party to the proceedings. (Section 67(2B) of the ADT Act.) The Tribunal elected to be a party and Ms Cho represented the Tribunal. In accordance with the principles in R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 at 35, her role is limited to making submissions in relation to the powers and procedure of the Tribunal.
10 Ms Bryant, a solicitor with The Aged-Care Rights Service (TARS), represented GO pursuant to s 71(4A) of the ADT Act . Ms Bryant stated that in her view GO does not have the capacity to provide instructions. She submitted that the appointment of the Protective Commissioner as GO’s financial manager was in her best interests given the conflict between GM on one hand, and GO’s solicitor and Rabbi GP on the other. In relation to the guardianship order Ms Bryant made certain recommendations about matters which she perceives to be in GO’s best interests.
11 Mr Forsyth represented GN, a social worker with the nursing home where GO used to live. GN was the applicant in the Tribunal proceedings.
Statutory framework
12 Section 4 of the Act places a duty on every person exercising functions under the Act, to observe certain principles. Those principles are as follows:
13 Guardianship orders . The Tribunal’s jurisdiction to make a guardianship order is set out in s 14 of the Act. In relation to the guardianship decision, there was no dispute in this case that GO has a disability, is incapable of managing for herself and is in need of a guardian. (See s 3, definition of "person in need of a guardian".) The issue is whether GO’s guardian should be the Public Guardian or GO’s son, GM. The appointment of the Public Guardian should be made as a last resort. Section 15(3) of the Act states that:
(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.
14 Financial management orders . The Tribunal’s jurisdiction to make financial management orders is set out in s 25E of the Act. If the Tribunal makes a financial management order, it may appoint either a “suitable person” to be the manager or commit the management of the estate to the Protective Commissioner. (Section 25M of the Act.)
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.
However, that “other person” needs to have certain attributes. Under s 17 of the Act:
(1) A person shall not be appointed as the guardian of a person under guardianship unless the Tribunal is satisfied that:
(a) the personality of the proposed guardian is generally compatible with that of the person under guardianship,
(b) there is no undue conflict between the interests (particularly, the financial interests) of the proposed guardian and those of the person under guardianship, and
(c) the proposed guardian is both willing and able to exercise the functions conferred or imposed by the proposed guardianship order.
The Tribunal’s hearing and decisions
15 GM requested the transcript of the Tribunal’s proceedings for the purposes of this appeal. Ms Cho, representing the Tribunal, explained that substantial parts of the transcript were not available because the equipment had not been recording correctly at the time. In particular none of the evidence given by GN, a social worker at the nursing home at which GO was residing, or Ms Murray, the Director of Nursing, was available. In addition, that part of the transcript where the Tribunal initially spoke to GM is missing. (See page 11 of the transcript where reference it made to “a chat to Mr [GM]”.)
16 None of the issues raised in the appeal is affected by material that was not available on transcript. Had the missing transcripts been relevant, statements from parties or witnesses present during those periods would have been useful.
17 The Tribunal heard evidence from GO in the absence of her son, GM. She expressed the view that her son should make all decisions for her. GM told the Tribunal that it should abide by his mother’s wishes. GN (the social worker) and Ms Murray both told the Tribunal that they did not object to GM being the guardian as long as he was willing to consult with GO’s treating doctor about her medical treatment. However GN suggested that it would be in GO’s best interests for the Protective Commissioner to manage GO’s financial affairs.
18 In its decision the Tribunal stated that:
19 Mr Dezarnauldes is in partnership in a legal firm with Mr Murphy. Both Mr Dezarnauldes and Rabbi GP told the Tribunal that they did not believe it to be in GO’s best interests for GM to be her guardian or her financial manager given the previous “difficult” relationship between them. The Tribunal said in its decision that: “The evidence obtained from Rabbi [GP] and Mr Dezarnauldes was communicated to [GM], Ms Murray and [GN] and each person was provided with an opportunity to comment and make submissions about the evidence provided in their absence.” The Tribunal also noted that [GM] played a tape recording at the hearing which appeared to have [GO’s] voice saying: “I want [GM] to be my guardian, is that correct? All of my money is to go to my son [GM].”
Due to the agitated and distressed demeanour of [GM] and the impact of the Tribunal hearing on [GO], who was understandably anxious, distressed and fatigued, the Tribunal was of the view that it was appropriate to obtain evidence from Rabbi [GP] and Mr Ken Dezarnauldes, solicitor, by telephone in the absence of [GO], [GM] and all the parties.
20 The Tribunal concluded that GM did not satisfy the requirements set out in s 17 of the Act to be appointed as GO’s guardian. The Tribunal relied particularly on the fact that at the time there was an AVO against him taken out by GO and that GM and GO had only recently resumed contact.
21 In relation to the financial management order, the Tribunal noted that GM was extremely unhappy with the way his mother’s financial affairs had been handled by Rabbi GP and Mr Murphy. Rabbi GP indicated to the Tribunal that he was no longer in a position to manage her affairs. The Tribunal noted in its decision that GM “agreed that it would be in his mother’s best interests to appoint the Protective Commissioner to manage his mother’s financial affairs”. The Tribunal concluded that it was in GO’s best interests that a financial management order be made and that her estate be committed to the Protective Commissioner for management.
22 In the proceedings before the Appeal Panel, GM denied that he had ever agreed to the Protective Commissioner being appointed as his mother’s financial manager. At page 23 of the transcript, when relating to GM what Mr Dezarnauldes and Rabbi GP had told the Tribunal over the phone, the presiding member said “Basically, they were both saying that they didn’t think that you should be the guardian either and they felt that the financial management should be placed with the Protective Commissioner.” GM replied: “I don’t mind that.”
Grounds of Appeal
23 GM had five grounds of appeal. They were as follows:
24 After dealing briefly with the first ground of appeal, we address the nature and scope of the rules of procedural fairness in relation to the Tribunal and then go on to deal with the other grounds of appeal.
1. The Apprehended Violence Order against him made in September 2001, should not have been granted.
2. He did not have enough time to instruct a solicitor or prepare the matter for hearing.
3. The Tribunal did not listen to the complete tape recording of GO stating that she wanted GM to be her guardian and to manage her financial affairs.
4. The Tribunal did not allow GM to hear the evidence of Mr Dezarnauldes, a partner of Peter Murphy, or Rabbi GP both of whom gave evidence to the Tribunal by phone.
5. The Tribunal did not disclose to GM the allegations Mr Dezarnauldes or Rabbi GP made about his ability to manage his mother’s finances.
Apprehended Violence Order
25 Whether or not an AVO should have been granted against GM is not a matter that the Appeal Panel can determine. The fact is that an AVO was granted and the Tribunal took it into account when reaching its decision. As it is a relevant consideration in terms of making a determination under s 17, we can detect no error in the Tribunal’s approach to this issue.
Procedural fairness
26 Two questions arise in relation to the applicability and content of the rules of procedural fairness. The first is whether GM is entitled to be afforded procedural fairness by the Tribunal. If so, what are the rules of procedural fairness that apply to Tribunal proceedings?
27 In order to obtain the benefit of the rules of procedural fairness, a person’s “interests, rights or legitimate expectations” must be affected. In Kioa v West (1985) 159 CLR 550 Mason J said, at 584:
28 Subsequent decisions have supported His Honour’s approach that a threshold test needs to be applied to determine whether a person’s “rights interests or legitimate expectations” are affected. (See, for example, Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 ; Johns v Australian Securities Commission (1993) 178 CLR 408; Annetts v McCann (1990) 170 CLR 596.)
The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.
29 The jurisdiction of the Tribunal includes power to appoint substitute decision makers to make decisions about a person’s personal affairs and/or their property. These appointments deprive the person concerned of the benefit of making independent decisions about their personal, domestic and/or financial affairs. Consequently, the making of orders by the Tribunal will always affect their interests. By s 4(a) of the Act, the Tribunal must give the interests of the subject person paramount consideration. While the subject person’s interests are paramount, they are not expressed to be the sole consideration that the Tribunal may take into account. R v London Borough of Wandsworth; Ex parte P [1989] 1 FLR 387, is a case concerning the extent to which procedural fairness should be afforded to a foster carer who was removed from a list of eligible carers because of allegations of child abuse. Ewbank J held that the Child Care Act 1980 required a local authority to give first consideration to the need to safeguard and promote the welfare of the child. Ewbank J added at p 5 that “The second duty in the context of this case is to be fair to parents, foster-parents and anyone else involved in its dealings.” The court concluded that the local authority, although dealing with risks, rather than proof, did not provide the foster carer with sufficient material to meet the allegations which were made against her.
30 In this case GM was a party to the application for a financial management order by virtue of s 3F(5)(e) of the Act because he had a power of attorney in relation to GO at the time of the hearing. It is apparent that the Tribunal also treated him as a party to the guardianship application. The fact that a person is a party to proceedings does not automatically mean that his or her interests, rights or legitimate expectations are affected. In guardianship proceedings, it is common for parties merely to have concerns for the welfare of the person the subject of the proceedings. In this case, the applicant GN, was a social worker. Section 57A(1) of the Act empowers the Tribunal to join others as a party to the proceedings “because of the person’s concern for the welfare of the person the subject of the proceedings or for any other reason.” Another reason may be that the person’s interests or legitimate expectations are affected by the Tribunal’s decision.
31 In this case there was no suggestion that GM had any relevant “legitimate expectations”. A legitimate expectation cannot be the expectation of procedural fairness. In Attorney General for New South Wales v Quin (1990) 170 CLR 1 at 55 Dawson J stated that:
32 Mason CJ in that case took a slightly different view when he said, at p 21, that “legitimate expectation may consist of an expectation of a procedural right” but His Honour noted that such an expectation “will not necessarily be the same as the procedure which procedural fairness or good administration . . . will demand.” On the basis of these observations our view is that while there cannot be a legitimate expectation that procedural fairness will be applied there can be a legitimate expectation that a particular procedure will be followed. It is not apparent, from the evidence available to the Appeal Panel, that GM had any particular expectation that the Tribunal would follow certain procedures. Consequently, in order for any of the rules of procedural fairness to apply to GM, his rights or interests must be affected.
It is when the expectation is of a fair procedure itself that the concept of a legitimate expectation is superfluous and confusing.
33 The word “interests” in this context has been interpreted broadly. In Kioa v West (1985) 159 CLR 550 Mason J said at 582 that interests may relate to “personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests.” A person’s interests must be affected directly and not merely in the same way in which the interests of an ordinary member of the public are affected. (Kioa v West per Mason J at 584 and per Brennan J at 619-20.)
34 The Tribunal’s role in this case was firstly to determine whether the pre-requisites for a guardianship and financial management order in relation to GO had been met. Once it had determined that those pre-requisites had been met, the Tribunal needed to decide who to appoint as the guardian and financial manager. It is incumbent on the Tribunal not to appoint the Public Guardian if an order can be made appointing some other person as the guardian. (See s 15(3) of the Act.) The only person putting himself forward as willing to act as guardian was GM.
35 In relation to the appointment of a financial manager, s 25M of the Act provides that the Tribunal may “(a) appoint a suitable person as manager of that estate, or (b) commit the management of that estate to the Protective Commissioner.” Although GM was not the applicant before the Tribunal, he put himself forward as being an appropriate person to be his mother’s guardian and to manage her financial affairs. In a practical sense he was applying to the Tribunal for that role (which could be characterised as a responsibility, a privilege or a benefit) to be conferred on him. Consequently, it cannot be said that the Tribunal was exercising its powers without any consideration of GM as an individual. His interest in being appointed as his mother’s guardian and financial manager was affected by the Tribunal’s decision.
36 The next question is whether there is a “clear manifestation” in the Act of an intention that participants in proceedings do not have to be accorded procedural fairness. (Kioa v West (1985) 159 CLR 550 per Mason J at 584.) Section 55 of the Act states that:
37 This provision does not demonstrate such an intention. (See Moore v Guardianship and Administration Board & Anor [1990] VR 902.) Similarly, there is no requirement in the Act that the Tribunal preserve confidentiality, apart from the discretion in s 56 to conduct hearings wholly or partly in the absence of the public. In fact, the Act contains several provisions which are consistent with the rules of procedural fairness. These include: the requirement for the applicant to serve the application on each party (s 10); the use of oral hearings, the opportunity to cross-examine witnesses called by another party (s 59(b)); and the opportunity to address the Tribunal on such matters as are relevant to the proceedings (s 59(e)).
(1) The Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks fit.
(2) Proceedings before the Tribunal shall be conducted with as little formality and legal technicality and form as the circumstances of the case permit.
38 In this case we are concerned with one aspect of the rules of procedural fairness, namely the hearing rule. That rule requires that a decision maker hear a person before making a decision affecting their interests. McHugh J spoke generally of this concept in Re Refugee Tribunal; ex parte Aala (2000) 75 ALJR 52 at 73:
39 The content of the hearing rule must be “appropriate and adapted to the circumstances of the particular case.” ( Kioa v West (1985) 159 CLR 550 per Mason J at 585.) Our task is to determine the content of the hearing rule in light of the Tribunal's jurisdiction, the statutory requirements about how that jurisdiction is to be exercised and judicial statements concerning the meaning of the obligation to abide by the rules of natural justice.
One of the fundamental rules of the fair hearing doctrine is that a decision-maker should not make an adverse finding relevant to a person's rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided. It is a corollary of the warning rule that a person who might be affected by the finding should also be given the opportunity to adduce evidence or make submissions rebutting the potential adverse finding ( Mahon v Air New Zealand Ltd [1984] AC 808 at 820-821.) [emphasis added]
40 The Tribunal’s jurisdiction is essentially protective. That means that one of its primary aims is to protect vulnerable people from neglect, abuse and exploitation. (See s 4(g) of the Act.) Another aim is the preservation of family relationships. (See s 4(e) of the Act.) In exercising any function, “the welfare and interests” of the subject person “should be given paramount consideration.” (See s 4(a) of the Act.) Consequently, in considering who to appoint as a guardian or financial manager the interests of GM should not take priority over those of GO.
41 In addition, potentially conflicting principles including preserving family relationships and protecting GO from abuse or exploitation, must be observed. The precise content of the hearing rule must be determined in the context of the particular situation arising at the time.
Insufficient time to instruct solicitor and prepare the case
42 A Notice of Hearing was sent to GM on 26 May 2003 advising that the hearing date was 3 June 2003. This was an urgent application. Urgency is a relevant matter in determining whether a party has been afforded procedural fairness. (Chen Zhen Zi v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 591 at 600-601 per Black CJ, Lee and Heerey JJ; Craig, Administrative Law, 3rd ed, 1994, p 299-300.) GM told the Appeal Panel that an investigator at the Tribunal told him that he would not be able to have legal representation because he needed to give the Tribunal five days notice before any application for leave to have legal representation could be considered. Ms Cho, representing the Tribunal, explained that either the President or the Deputy President of the Tribunal hears applications for leave to be represented by a lawyer.
43 GM did not apply to be represented by a solicitor. He said that was because he had no time to do so, however given that no application for leave to obtain legal representation was made, GM cannot now complain that he was not legally represented at the hearing.
44 Under s 10 of the Act, an application for a guardianship order must be served “as soon as practicable after the application has been made” and must be accompanied by a notice of hearing. In this case, the application was made on 20 May 2003 and lodged with the Tribunal on 21 May 2003. The application was served on 26 May 2003. Section 10 does not require the Tribunal to give parties any particular period of notice prior to a hearing.
45 Whether or not the period of eight days notice was adequate depends on factors such as the complexity of the issues, the material to be considered and any need for urgency. (Bakewell v MacPherson (unreported, SA Supreme Court (full Ct), 25 September 1992, at 21-22.) In this case, the factual issues were not complex and there was not a great deal of material to be considered. Given the urgency of this application, the period of eight days notice was reasonable in all the circumstances and does not amount to a breach of the rules of procedural fairness.
Listening to the tape recording
46 The Tribunal listened to part of a tape recording provided by GM of his mother’s voice. The transcript of that recording reads:
47 After advising GM of the Tribunal’s decision, GM said to the Tribunal members: “. . . my mother wanted me to be the guardian and you wouldn’t even let me put that tape recording on. You wouldn’t give me a fair hearing, that’s all I can say. I tried to put that on, that she wanted me to be the guardian and you didn’t respect her wishes.”
GM: Who do you want to be looking after you?
GO: I want [GM] to be my guardian. Is that correct?
GM: Yeah.
GO: I want my son, [GM] to be in charge of both my property (indistinct.) Everything for that.
GM: (indistinct) guardian.
GO: He is my guardian.
TAPE RECORDING STOPPED
48 It is clear to us from the transcript that while the Tribunal members did not listen to the entire tape recording, they did hear GO say that she wanted GM to be her guardian and impliedly, her financial manager. That evidence was consistent with her oral evidence and is reflected in the Tribunal’s decision. In our view the Tribunal has complied with both the statutory and common law requirements to ensure that a party is given the opportunity to adduce relevant evidence. (s 59(e) of the Act.) GM did not suggest that there was any other relevant information on the tape recording that the Tribunal should have taken into account. In those circumstances the Tribunal has not breached the rules of procedural fairness.
Adverse evidence
49 The Tribunal heard evidence from Mr Dezarnauldes and Rabbi GP in the absence of GM and the other parties. GM alleged that, having been excluded, the Tribunal did not convey to him Rabbi GP and Mr Dezarnauldes’ evidence about his alleged inability to manage his mother’s finances. Rabbi GP told the Tribunal that:
50 Mr Dezarnauldes told the Tribunal that: “Rabbi GP has been fortunately controlling the financial side of the matter and if Mr [GM] was in control, God know what might happen. . . . He’s an absolute raving lunatic.” (See page 18 of the transcript.) Later, Mr Dezarnauldes said:
Subsequently, speaking to other people that were involved with them over the years I understand that she has given him over the years three apartments, three units which two are sitting empty, one has been sitting empty for two years because they didn’t want to do a little bit of work to it. So his ability to financially manage is a bit of a concern. (See page 12 of the transcript.)
51 The Tribunal conveyed to GM other evidence Rabbi GP had given about the nature of the relationship between GO and GM and his concerns about GM’s intervention in her medical treatment. The Tribunal then conveyed to GM the fact that Mr Dezarnauldes had related the history of the AVO being granted and other allegedly threatening conduct in which GM had engaged. GM denied those allegations. The Tribunal did not mention to GM the comments Mr Dezarnauldes or Rabbi GP made about GM’s ability or suitability or unsuitability to manage his mother’s financial affairs. Our finding, on the basis of the transcript, is that the Tribunal did not put to GM the substance of the evidence about his alleged inability to manage his mother’s financial affairs.
Now I gather from the records I’ve kept here that [GO] is probably, she’s made a will and I think that in fact she has left most of her – all assets to the son anyhow, but he has – is apparently desperate to get financial control at this stage and I think that would be the worst (indistinct) if it ever happened if he’s given financial control.” (See page 19 of the transcript.)
52 One reason for failing to do so may have been that the Tribunal was under the impression that GM had consented to the Protective Commissioner being appointed as his mother’s financial manager. At page 16 of the transcript, the presiding member told Mr Dezarnauldes that “GM is happy for the Protective Commissioner to manage the money for a period.” This impression must have been obtained when the Tribunal spoke to GM. That part of the proceedings is not available on transcript. GM also told the Tribunal later that he did not mind the Protective Commissioner being appointed. GM told the Appeal Panel that he had not consented to the appointment of the Protective Commissioner.
53 Even if GM consented to the Protective Commissioner being appointed, the Tribunal’s role, once the prerequisites for a financial management order had been established, was to determine whether a “suitable person” was available for appointment. The only person putting himself forward as a “suitable person” was GM.
54 Both Mr Dezarnauldes and Rabbi GP gave evidence which was adverse to GM’s interests. GM was not given an opportunity to respond to at least some of that evidence.
Opportunity to respond to adverse evidence
55 The lawfulness of denying a party the opportunity to respond to the adverse evidence of a witness or another party must be determined in the context of the relevant legislative provisions and the common law rules of procedural fairness. Under s 56 of the Act, proceedings are generally open to the public, however the Tribunal can determine that the proceedings be conducted wholly or partly in the absence of the public. Unlike s 35(2)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) there is no specific provision allowing the Tribunal to prohibit or restrict the disclosure of evidence to some or all of the parties to a proceeding. (See Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247.)
56 The general rule is that where a person’s interests are affected by a decision, that person should be given an opportunity to respond to adverse information. In Kioa v West (1985) 159 CLR 550, Brennan J stated at 629 that:
57 While every detail of the evidence given in the absence of a party is not required to be put to that party, the substance or gravamen of that evidence should be disclosed. ( Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247; Re Pergamon Press Ltd [1971] CH 388; Ansell v Wells (1982) 43 ALR 41.) Under the Act, the opportunity to deal with adverse information does not necessarily include a right to cross-examine all parties or witnesses. (See s 59(e) and Christou & Ors v Guardianship Tribunal & Ors (unreported, Supreme Court, Windeyer J, PO43/01, 17 September 2002.)
. . . in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made.
58 The fundamental significance of the general rule that a decision maker must give a person whose interests are affected, the right to respond to adverse evidence, is reflected in following dictum of Gummow J in Muin v Refugee Review Tribunal (2002) 76 ALJR 966 at 1005:
59 However, to attract the hearing rule, the adverse information must be “credible, relevant and significant to the decision.” (See also NIB Health Funds Ltd v Private Health Insurance Administration Council (2002) 115 FCR 561 at 585-6 per Allsop J.) Although the evidence of Rabbi GP (as outlined above at [49]) and that of Mr Dezarnauldes’ (as outlined above at [50]) is a combination of hearsay and opinion evidence that evidence was consistent, definite and not inherently implausible. We regard that evidence as credible.
The right to respond to significantly adverse evidence is one of the most important aspects of natural justice. It is deeply embedded in our legal system.
60 Evidence about the alleged manner in which GM has handled his mother’s financial affairs in the past is relevant in determining whether he is a “suitable person” to be the financial manager. It is also highly significant because GO’s express wish was that GM manage her financial affairs and GM put himself forward as being a “suitable person” to do so. The fact that the Tribunal did not refer to GM’s alleged inability or unsuitability to manage his mother’s finances in its decision is irrelevant. (Kioa v West 159 CLR 550 at 629 per Brennan.)
61 In those circumstances the Tribunal has not complied with the general rule requiring it to give GM an opportunity to deal with adverse information that is credible, relevant and significant to the decision.
62 Exceptional circumstances, such as the need to keep material confidential, to maintain secrecy or to hear a matter urgently may displace the general rule. (ReMinister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 116 per Kirby J, at 100 per McHugh J; Muin v Refugee Review Tribunal (2002) 76 ALJR 966 at 991 per McHugh J; Kioa v West (1985) 159 CLR 550 at 629 per Brennan J.) None of these circumstances was present in this case.
Conclusion
63 In our view, the Tribunal has made an error of law in failing to afford GM the opportunity to respond to adverse information affecting his interests. (A similar approach to the application of the rules of procedural fairness in the context of a guardianship tribunal hearing was taken by Gobbo J in Moore v Guardianship and Administration Board & Anor [1990] VR 902.) Because that error only related to the financial management decision, the guardianship decision is unaffected. GM sought leave to appeal against the merits of the decisions. In the circumstances of this case, it is not appropriate for the Appeal Panel to re-hear the matter. The financial management decision should be remitted to the Tribunal to be heard and decided again after hearing further evidence. We leave to the Tribunal the decision as to the nature of that evidence. The effect of any decision to set aside the Tribunal’s financial management order is to leave GO without anyone to manage her financial affairs. Consequently the Appeal Panel’s orders will not come into effect until the Guardianship Tribunal has re-heard and re-decided this matter.
Orders
1. The limited guardianship orders made by the Tribunal on 3 June 2003 are affirmed.
2. The financial management orders made by the Tribunal on 3 June 2003 are set aside.
3. The financial management matter is remitted to be heard and decided again by the Tribunal with the hearing of further evidence.
4. Order No. 2 will not come into effect until the Guardianship Tribunal has reheard and re-decided the matter.
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