GS v Protective Commissioner and Guardianship Tribunal

[2003] NSWADTAP 52

Appeal Panel - External

CITATION:	GS v Protective Commissioner and Guardianship Tribunal [2003] NSWADTAP 52
PARTIES:	APPELLANT GS FIRST RESPONDENT Protective Commissioner SECOND RESPONDENT Guardianship Tribunal
FILE NUMBER:	038005
HEARING DATES:	29/09/03
SUBMISSIONS CLOSED:	09/29/2003
DATE OF DECISION:	10/29/2003
DECISION UNDER APPEAL:	Guardianship Tribunal 2002/3068
BEFORE:	Hennessy N - Magistrate (Acting President); Innes G - Judicial Member; Green J - Member
CATCHWORDS:	Financial management order - review - Identify/apply wrong statutory test - Procedural fairness
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	C/24329
DATE OF DECISION UNDER APPEAL:	06/12/2003
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Administrative Decisions Tribunal Rules (Transitional) Regulation 1998 Guardianship Act 1987
CASES CITED:	Aboriginal Sacred Sites Protection Authority v Maurice (1986) 65 ALR 247 Beckner v Minister for Immigration, Local Government and Ethnic Affairs (1991) 30 FCR 49 Chen Zhen Zi v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 591 K v K [2000] NSWSC 1052 Kioa v West (1985) 159 CLR 550 Mayes v Mayes [1971] 1 WLR 679 Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666 R v Australian Broadcasting Tribunal; ex parte Hardiman 1980 144 CLR 13 R v Medical Practitioners Professional Conduct Tribunal; Ex parte Medical Board (1985) 40 SASR 84 Re Minister for Immigration and Multicultural Affairs & Anor; Ex parte Miah (2001) 206 CLR 57 Re R [2000] NSWSC 886 Re Refugee Tribunal; Ex parte Aala (2002) 204 CLR 82 S v S [2001] NSWSC 146
REPRESENTATION:	APPELLANT In person FIRST RESPONDENT No appearance SECOND RESPONDENT E Cho, Legal officer PERSON ASSISTING S Free, solicitor
ORDERS:	1 The decision of the Guardianship Tribunal is affirmed; 2 Appeal dismissed

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.
Section 126 provides
(1A) This section applies only to the following:
(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.

(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:
(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,
whether 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.

Introduction

1 GS is a 32 year old man who lives with his parents. He acknowledges that he has schizophrenia for which he has been taking regular medication. He receives a Disability Support Pension of $446.00 per fortnight.

2 On the application of a social worker with a Community Mental Health Centre, the Guardianship Tribunal (the Tribunal) made an order on 13 June 2002 committing management of GS’s estate to the Protective Commissioner for 12 months. The Tribunal’s decision noted that GS asked the social worker to make the order because of his deteriorating financial situation. Dr Juratowitch, GS’s treating psychiatrist, gave evidence that GS was suffering from a serious mental illness which resulted in impaired judgement leading to impulse spending. This spending was mainly in relation to services provided by sex workers.

3 Although GS supported the initial order he opposed continuation of the order when it came up for review 12 months later. Despite GS’s opposition, the Tribunal decided to confirm the financial management order. It is that decision from which GS has appealed to the Appeal Panel. In the course of the hearing the Appeal Panel was told that GS’s mother had applied for a further review of the financial management order because she was now of the view that GS did not need to have a financial management order. The Tribunal has accepted that application and will hear the matter in due course. Despite this development, GS told the Appeal Panel that he wanted to continue with the appeal.

Jurisdiction and powers of the Appeal Panel

4 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). In particular, s 67A(1)(g) gives a party the right to appeal against a decision of the Tribunal made under s 25P of the Act. An external appeal may be made as of right, on any question of law, or by leave on any other grounds. (Section 118B(1) of the ADT Act.) As well as identifying questions of law, GS sought leave to appeal the merits of the decision.

5 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 to the appeal and representation

6 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”.) GS 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. GS submitted that the Protective Commissioner should have appeared and made submissions to the Appeal Panel. In our view it is generally not appropriate for the Protective Commissioner to play an active part in proceedings before the Appeal Panel because he has no interest in whether a financial management order is in place. His role is to manage the person’s estate once an order has been made. We draw no adverse inference from the Protective Commissioner’s decision not to participate in the proceedings.

7 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. She agreed that, in accordance with the principles in R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 at 35, her role was limited to making submissions in relation to the powers and procedure of the Tribunal. In that case, the Australian Broadcasting Tribunal, as the original decision making body, took the unusual course of presenting a substantive argument to the High Court in relation to an appeal against its decision. Gibbs, Stephen, Mason, Aickin and Wilson JJ stated that:

In cases of this kind the usual course is for a tribunal to submit to such order as the court may make. The course which was adopted by the Tribunal in this Court is not one which we would wish to encourage. If a tribunal becomes a protagonist in this Court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted. The presentation of a case in this Court by a tribunal should be regarded as exceptional and, where it occurs, should, in general, be limited to submissions going to the powers and procedures of the

Tribunal.

8 As GS and the Tribunal were the only active parties to the appeal, and the Tribunal’s role is limited, the Appeal Panel appointed the Crown Solicitor’s Office (CSO) to assist the Tribunal in coming to a decision. Mr Free, an officer from the CSO, made comprehensive and even-handed submissions to the Appeal Panel. Although the issue was not raised in the hearing, the question of whether a person assisting the Appeal Panel is a party to the proceedings, is an important one. The Appeal Panel’s power to appoint a person to assist it comes from s 67(2C) of the ADT Act which states that:
The rules of the Tribunal may, in respect of an external appeal, make provision for the parties to any such appeal (including the designation of a respondent or other person to assist the Tribunal in the proceedings).
9 Rule 41A(2) of Schedule 1 to the Regulation states that:
For the purposes of section 67(2C) of the Act, the Tribunal may designate a respondent or other person to assist the Tribunal in external appeal proceedings.
10 While we do not intend to come to a definitive view on this question given the fact that it was not raised as an issue, we are of the provisional view that unlike a respondent, a person assisting the Appeal Panel is not a party to the proceedings. It is arguable that s 67(2C) only envisages the appointment of parties, but in the case of an officer assisting, that person has no interest in the proceedings and is not advocating or defending a particular position. Their role is to assist the Appeal Panel in coming to a fully informed and legally correct decision. Designation as a party would allow the person to appeal against the decision and leave them open to an adverse costs order. Neither of those outcomes is appropriate for a person whose role is to assist the Tribunal in its deliberations.

Statutory framework

11 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:

(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.

12 The Tribunal’s jurisdiction to make financial management orders is set out in s 25E of the Act. Section 25G sets out the circumstances in which the Tribunal may make a financial management order. Although in this case the Tribunal was reviewing, rather than making, a financial management order in this case, it is useful to understand the basis on which such an order may be made:
The Tribunal may make a financial management order in respect of a person only if the Tribunal has considered the person’s capability to manage his or her own affairs and is satisfied that:

(a) the person is not capable of managing those affairs, and

(b) there is a need for another person to manage those affairs on the person’s behalf, and

(c) it is in the person’s best interests that the order be made.

13 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)

14 Under s 25N the Tribunal may order that a financial management order be reviewed within a specified time. In this case, the Tribunal ordered that the initial financial management order made on 13 June 2002, be reviewed within 12 months. On 12 June 2003, of its own motion, the Tribunal reviewed the order. When reviewing an order, the Tribunal may vary, revoke or confirm the order. In this case the order was confirmed. Importantly, s 25P(2) provides that:

The Tribunal may revoke a financial management order only if:

(a) the Tribunal is satisfied that the protected person is capable of managing his or her affairs, or

(b) the Tribunal considers that it is in the best interests of the protected person that the order be revoked (even though the Tribunal is not satisfied that the protected person is capable of managing his or her affairs).

15 The Tribunal may, either on its own motion, or on the application of certain people, review its appointment of the manager of the protected person’s estate. (Section 25S of the Act)

The Tribunal’s decision

16 After hearing evidence from GS, GS’s father (by phone), Rory O’Loughlin, estate manager (by phone) and Dr Juratowitch (by phone) the Tribunal confirmed the financial management order committing management of GS’s estate to the Protective Commissioner. The Tribunal concluded that GS did not have any plans as to how he would feed himself and look after himself if his parents died or how he would look after any capital he had other than spend it on personal requirements including sex workers. While the Tribunal acknowledged that GS was entitled to spend his money on sex workers, it found no evidence of planning for or having money available for other requirements. The Tribunal accepted Dr Juratowitch’s evidence that GS’s spending on sex workers was “compulsive” and that it is likely that he would dissipate his money if he had financial management of it.

Grounds of Appeal

17 On the basis of all the submissions, including those of the person assisting the Tribunal, the possible grounds of appeal are that:

(a) the Tribunal had no jurisdiction to hear the review because the original applicant for the financial management order was not a party to the review proceedings;

(b) the Tribunal erred by not affording GS procedural fairness because it did not give him a reasonable opportunity to present his case;

(c) the Tribunal erred by not affording GS procedural fairness because Dr Juratowitch gave his evidence over the phone in a rushed manner;

(d) the Tribunal asked itself the wrong question, or applied the wrong statutory test; and

(e) the Tribunal did not observe all the principles set out in s 4.
Alternatively, the Tribunal should have reviewed the appointment of the Protective Commissioner and appointed another person as financial manager.
18 These matters all raise questions of law. Each will be examined in turn. If none is made out, then the issue arises as to whether the Appeal Panel should grant leave to GS to appeal on any other ground.

Absence of an original applicant

19 GS submitted to the Tribunal that because the social worker who made the original application no longer wished to be involved, it did not have jurisdiction to make a further order. The Tribunal rejected GS’s submission and stated that its jurisdiction is contained in s 25P(1) of the Act.

20 Mr Free, the person assisting the Tribunal, pointed out that under s 3F(7) of the Act, the parties to proceedings for the review of a financial management order are:

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

(b) the protected person to whom the relevant financial management order relates,

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

(d) the person, if any, who has care of the protected person,

(e) the person appointed as the manager of the estate concerned,

(f) the Protective Commissioner,

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

21 The person who applied for the original order is not mentioned in this list. Consequently, unless the person who applied for the original order also meets the description of any of the people listed above, that person will not be a party to the review proceedings. In those circumstances, the Tribunal did not err in rejecting GS’s submission that the original applicant needs to be a party to the review hearing. That ground of appeal fails.

Reasonable opportunity to present his case

22 GS submitted that he was denied procedural fairness because he was not given a reasonable opportunity to present his case. He said that the Tribunal concluded the proceedings before he had said everything he wanted to say. The proceedings commenced with Tribunal members asking questions of GS about his current circumstances and how he has managed his finances. The Tribunal then spoke to Dr Juratowitch over the phone. GS had a brief opportunity to comment on what the doctor had said. The Tribunal members then asked him what financial plans he had for the future. The Tribunal then spoke to Mr O’Loughlin from the Office of the Public Guardian. The presiding member asked GS whether he wanted to ask Mr O’Loughlin anything but he declined. The Tribunal then spoke to GS’s father on the phone. At the end of the proceedings, the presiding member said:

. . . and we also have to be conscious, because we’ve got some other people from up the north coast who want to speak to us at four o’clock so we really have to think about that but you made your point very well. I think you’ve put your case as well as you can put it. We now need some time between the three of us to decide what we’re going to do so we’re going to ask you just to wait outside just for a few moments.
23 GS said he felt rushed and wanted more time to tell the Tribunal why he wanted the order revoked.

24 The rule of procedural fairness which is relevant here is that the parties must be given a fair opportunity to present their case. The precise content of the rules of procedural fairness depends on the circumstances in which the body subject to those rules is to exercise its powers. (Kioa v West (1985) 159 CLR 550 per Brennan J at 629.) In this case, the circumstances include the statutory framework, the nature of the jurisdiction and relevant case law.

25 There is no statutory requirement in the Act to observe the principles of procedural fairness. Section 55(1) provides that:

The Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks fit.
26 The absence of a statutory requirement to abide by the rules of procedural fairness does not mean that those rules do not apply to the Tribunal. Mason J stated in Kioa v West (1985) 159 CLR 550 at 584 that:
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.
27 There is no contrary statutory intention in the Act. In fact, the Act contains several provisions which are designed to ensure procedural fairness. These include: the requirement to serve the application (s 10); the use of oral hearings, the opportunity to cross-examine witnesses (s 59(b)); and the opportunity to address the Tribunal on such matters as are relevant to the proceedings (s 59(e)).

28 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 right to make independent decisions about their personal, domestic and/or financial affairs. The seriousness of depriving a person of these rights is moderated by the principles to be observed by anyone exercising functions under the Act as set out in s 4. In particular the freedom of decision and freedom of action of such persons should be restricted as little as possible while ensuring that they are protected from neglect, abuse and exploitation.

29 According to Aronson and Dyer (Judicial Review of Administrative Action, 2nd ed, LBC Information Services) at 397, “. . .the consequences of a decision are of vital importance in assessing the content of procedural fairness.” Those authors go on to say that:

Generally speaking, the content of procedural fairness, or the extent of the participation it permits, will tend to increase in proportion to the seriousness of the consequences involved. Where the potential consequences of a decision are grave, allowing affected persons a more extensive opportunity to be heard offers the dual benefits of reducing the risk of errors, and promoting acceptance of such decisions by the persons concerned and the public in general.
30 Commentators and courts have recognised that regardless of how serious the consequences of a decision are, other factors such as the need for urgency and considerations of cost and efficiency are also relevant. ( Chen Zhen Zi v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 591 at 600-601 per Black CJ, Lee and Heerey JJ; Aronson & Dyer at 397; Craig, Administrative Law, 3rd ed, 1994, p 299-300.)

31 Another relevant factor in determining the content of the rules of procedural fairness is whether the proceedings are adversarial or inquisitorial. Section 55(1) of the Act allows the Tribunal to “inform itself on any matter in such manner as it thinks fit.” While that provision does not necessarily indicate whether the proceedings are intended to be adversarial or inquisitorial it would at least allow the Tribunal to adopt inquisitorial procedures. (See Aboriginal Sacred Sites Protection Authority v Maurice (1986) 65 ALR 247 at 261 per Toohey J.) The Tribunal has adopted such procedures by carrying out investigations, gathering evidence and questioning parties and witnesses.

32 The final factor which is relevant in determining the content of the rules of procedural fairness before the Tribunal is any relevant case law. The common law rule is that a party must be given a reasonable opportunity to give relevant evidence and make relevant submissions. (Beckner v Minister for Immigration, Local Government and Ethnic Affairs (1991) 30 FCR 49; Mayes v Mayes [1971] 1 WLR 679; R v Medical Practitioners Professional Conduct Tribunal; Ex parte Medical Board (1985) 40 SASR 84.) In recent times, the High Court has consistently applied that rule to investigative Tribunals such as the Refugee Review Tribunal. (See, for example, Re Minister for Immigration and Multicultural Affairs & Anor; Ex parte Miah (2001) 206 CLR 57; Re Refugee Tribunal; Ex parte Aala (2002) 204 CLR 82.) Those cases highlight the need for investigative tribunals to inform parties of all relevant material on which they have relied in reaching a decision and to provide them with an opportunity to respond.

Conclusion on the content of procedural fairness rule

33 Despite the absence of a statutory instruction to abide by the rules of natural justice, the Tribunal is not absolved from its common law obligation to afford procedural fairness to parties. The Tribunal has understandably adopted an inquisitorial approach to the hearing of matters within its jurisdiction. That approach frequently involves addressing specific questions to parties and witnesses and allowing them to respond to material put forward by other parties or witnesses. Despite the fact that the Tribunal members exercise significant control over the hearing of the matter, parties must be given a reasonable opportunity to give relevant evidence and make relevant submissions. The fact that GS’s rights will be seriously affected by the making of an order highlights the importance of ensuring that such an opportunity is afforded.

34 In keeping with the Tribunal’s inquisitorial approach, members asked GS specific questions rather than giving him an open ended invitation to present evidence or submissions in support of his case. However, when the Appeal Panel asked GS what else he would have told the Tribunal, he was unable to point to anything specific. His inability to do so is understandable since a considerable period of time has now elapsed since the Tribunal hearing. While the Tribunal’s procedures may have been enhanced by giving GS an open ended opportunity to put his case, rather than being limited to responding to specific questions, having read the transcript and heard GS’s submissions before the Appeal Panel, we are satisfied that there has been no breach of procedural fairness in this case. The Tribunal gave him a reasonable opportunity to give evidence and make submissions.

Dr Juratowitch’s evidence

35 Ms Cho advised the Appeal Panel that it is the Tribunal’s practice to obtain evidence from medical practitioners by phone. Mr Free submitted that the manner in which evidence was obtained from Dr Juratowitch, especially considering that there was no written report from him, was less than ideal. At page 15 of the transcript the following exchange occurred between the presiding member and Dr Juratowitch:

Mr Hopkins: Look, thanks for taking our call. You – our Registry should’ve spoken to you before that this matter is coming up and let you know that we might be needing to speak to you, but unfortunately they didn’t so we do very much appreciate that you have taken our call and we do appreciate you are busy

Dr Juratowitch: Yes, I am actually in with a patient at the moment.

Mr Hopkins: All right.

Dr Juratowitch: It’ll have to be as brief as is possible.

36 Dr Juratowitch’s evidence that GS’s spending on sex workers was “compulsive” and that GS is likely to dissipate his money if he had financial management of it, was crucial to the Tribunal’s decision. That evidence was given on the spot with no apparent preparation, in circumstances where Dr Juratowitch was extremely pressed for time.

37 The Tribunal is not bound by the rules of evidence but must only take into account evidence which is relevant and logically probative. (Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666 per Deane J at 689.) The weight to be given to evidence will depend on its reliability.

38 In proceedings before the Tribunal, taking evidence from medical practitioners by phone is often the only practical way in which that evidence can be obtained. In this case the limitations of phone evidence were exacerbated because Dr Juratowitch had not prepared a report and was asked to come to a view on the spot when he was in the middle of a consultation. Evidence obtained in that way may be less reliable than written evidence or oral evidence given after adequate notice. However whether or not the Tribunal gave undue weight to Dr Juratowitch’s evidence in the circumstances of this case, is not a question of law. As no question of procedural fairness was raised, this ground of appeal is not made out.

The Tribunal identified or applied the wrong statutory test

39 The officer assisting the Appeal Panel pointed out that at page 1 of the Tribunal’s reasons for decision, under the heading “What must be proved” the Tribunal set out the test in s 25G for the making of financial management orders. As the Tribunal was reviewing rather than making the order, Mr Free said that the correct test is that set out in s 25P. While the Tribunal set the test for revoking an order at page 3 of its decision, Mr Free queried whether the Tribunal had applied that test to the facts of the case. In particular, in the final paragraph of its conclusion, the Tribunal stated that:

Upon all the evidence the Tribunal is satisfied that [GS] is incapable of managing his financial affairs and it is in his best interests that the financial management order remain so that [he] does not dissipate his income and savings. The Tribunal is satisfied that (it is) in the best interests of [GS] for his finances to continue to be managed by OPC. There is no other manager available. (Words in brackets added.)
40 In this case, according to Mr Free, once the Tribunal had found that GS was incapable of managing his financial affairs, it did not appear to ask itself the separate question as to whether or not it would nevertheless be in GS’s best interests to revoke the order.

41 The Act does not set out the circumstances in which a financial management order should be confirmed. While it would be logical to confirm an order when the circumstances for making the order (namely “incapacity”, “need” and “best interests”) are present, and to revoke an order when any one of these criterion is not present, s 25P(2) suggests otherwise. That provision states that an order may only be revoked if the Tribunal is satisfied that the protected person is capable of managing his or her affairs, or the Tribunal considers that it is in the best interests of the protected person that the order be revoked. Curiously, if there is no “need” for another person to manage the person’s financial affairs, the order cannot be revoked on that ground.

42 This analysis leads to the conclusion that when reviewing an order, the Tribunal must ask itself the following questions: “Is the protected person capable of managing his or her affairs?” If the answer is “Yes” the order may be revoked. If the answer is “No”, then the Tribunal must ask: “Is it in the best interests of the protected person that the order be revoked?” If the answer is “Yes” the order may be revoked. If the answer is “No”, then the order must be confirmed (or possibly varied) without necessarily addressing the question of whether there is a need for the order to remain in place.

43 The Tribunal initially focused on the question of whether GS was capable of managing his affairs. It concluded on the basis of evidence, including his response to questions they asked him about his plans for the future, that he was not. Having come to that view, the Tribunal went on to conclude that it was in GS’s best interests that the order remain. While there was no discussion of the factors that were taken into account in coming to that conclusion, we are satisfied that the Tribunal identified and applied the correct test. We can detect no error of law in relation to this ground of appeal.

Observation of principles in s 4

44 Mr Free highlighted s 4 and noted that the Tribunal did not advert to the principles in that provision in the course of its decision. In particular, the Tribunal did not mention the importance of taking GS’s views into consideration. While it is critical that Tribunal members have the principles in s 4 at the forefront of their minds when making a decision, there is no need to list those principles in the decision as long as they are in fact observed. The Tribunal did set out GS’s views in the decision and again, we can detect no error in its approach.

Review of appointment of financial manager

45 GS told the Appeal Panel that even if the financial management was not revoked, someone else should be appointed as his financial manager. He nominated his mother, his father, his brother or Dr Juratowitch. At the Tribunal review hearing, GS said:

Even, you know, I like to say now even though I am mentally ill, I do have a lot of insight into my illness due to the fact that I have regular consultations with the consultant psychiatrist and he’s very good, you know, and he could monitor my finances because he asked me and I’ll remind him he can monitor that. I think really there is – I can’t see any need for the OPC any more, to be honest.
46 Under s 25S of the Act, the Tribunal may, either on its own motion or at the request of certain people, review the appointment of the manager of the protected person’s estate. In this case, no such application had been made. The Tribunal was reviewing the financial management order, not the appointment of the Protective Commissioner as manager. Consequently whether or not the Protective Commissioner is the appropriate financial manager is not a matter the Appeal Panel can consider.

Leave to appeal on other grounds

47 Having concluded that no error of law has been made out, we must now decide whether to grant leave to extend the appeal to any other ground, namely the merits of the decision. The ADT Act does not contain any guidance on the relevant matters to be taken into account in determining whether leave should be granted. The Supreme Court has provided some guidance on this question in the cases of K v K [2000] NSWSC 1052; S v S [2001] NSWSC 146 and Re R [2000] NSWSC 886 (17 August 2000). Those cases interpret s 67 of the Act which is the equivalent provision in relation to appeals from Tribunal decisions to the Supreme Court. In K v K, Young J observed at [10] that ‘it has never been clearly decided what the circumstances are that should lead the Court to grant leave to appeal under s 67’, but went on to make a number of observations on this point: see para [10]-[15]. After considering the relationship between the Court and the Tribunal, Young J observed at [15]:

It would seem to me that s 67 of the Guardianship Act operates so that broad questions of administration and policy and the applicability of policy to individual cases, even if they are not questions of law, may well be subjects on which the Court will grant leave to appeal. On the other hand, it is very unlikely that the Court will grant leave to appeal when there is a problem with a fact finding exercise unless there are clear indications that the Tribunal has gone about that fact finding process in such an unorthodox manner or in a way which is likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.
48 GS attempted to tender new evidence before the Appeal Panel, namely a medical report from his general practitioner, Dr Karen Hing, dated 5 August 2003. That report was prepared after the Tribunal had made its decision, but GS submitted that it was extremely relevant and should be taken into account. GS’s mother also told the Tribunal that she had now changed her mind about the need for GS to have a financial management order. Although she did not give evidence before the Tribunal, her husband had told the Tribunal that GS could not manage his money and that there was a need for a financial manager.

49 Having taken into account GS’s submissions and the fact that the Tribunal has accepted an application for a further review of the order, we do not grant leave to extend the appeal to the merits of the decision. The Tribunal will be able to take into account the new evidence referred to above and make a fresh decision. It is in GS’s interests to have that application determined by a specialist Tribunal with considerable expertise in this area.