GW v Protective Commissioner

[2003] NSWADTAP 61

Appeal Panel - External

CITATION:	GW v Protective Commissioner & Ors [2003] NSWADTAP 61
PARTIES:	APPELLANT In person FIRST RESPONDENT Protective Commissioner SECOND RESPONDENT HD THIRD RESPONDENT GX FOURTH RESPONDENT Guardianship Tribunal
FILE NUMBER:	038007
HEARING DATES:	13/11/03
SUBMISSIONS CLOSED:	11/13/2003
DATE OF DECISION:	11/28/2003
DECISION UNDER APPEAL:	Guardianship Tribunal 2001/5986; 2002/6002
BEFORE:	Hennessy N - Magistrate (Acting President); Leal S - Judicial Member; Houlahan L - Member
CATCHWORDS:	Financial management order - making - Leave to appeal on other grounds - No error of law
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	C/10432
DATE OF DECISION UNDER APPEAL:	05/23/2003
LEGISLATION CITED:	Administrative Decisions Tribunal (General) Regulation 1998 Administrative Decisions Tribunal Act 1997 Guardianship Act 1987 Mental Health Act 1990 Protected Estates Act 1983
CASES CITED:	K v K [2000] NSWSC 1052 S v S [2001] NSWSC 146 Re R [2000] NSWSC 886 R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13
REPRESENTATION:	APPELLANT In person FIRST RESPONDENT No appearance SECOND RESPONDENT In person THIRD RESPONDENT In person FOURTH RESPONDENT E Cho, legal officer
ORDERS:	1 The decision of the Guardianship Tribunal made on 23 May 2003 is affirmed.; 2 Appeal dismissed

(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.

1 GW is a 43 year old man who lives with his mother. The Guardianship Tribunal made two interim financial management orders for periods of 6 months each in respect of GW. The reason for those orders was to wind up a substantial cattle enterprise, which had been run by GW. His ex-wife (GX), and the family accountant (HD) jointly applied to the Tribunal for a financial management order under the Protected Estates Act 1993.

2 On 23 May 2003, the Guardianship Tribunal made the following orders:

The estate of GW be subject to management under the provisions of the Protected Estates Act 1983

The manager of GW’s estate be HD (the family accountant) subject to such conditions, including the giving of security, as the Protective Commissioner considers appropriate.

3 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)(e) gives a party the right to appeal against a decision of the Tribunal made under s 25E 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, GW sought leave to appeal the merits of the decision.

4 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.)

5 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.

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.

6 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)

Grounds of Appeal

7 In his Notice of Appeal, GW did not state any grounds for appealing on a question of law. However in his letter dated 13 October 2003, he raised three concerns about the parties to the Appeal Panel proceedings and their role.

8 GW said that his ex wife has no entitlement to be a respondent to these proceedings because she is no longer married to him. It is true that GW and his former wife were married at the time of the Guardianship Tribunal hearing, but that their marriage has been dissolved since that time. Because GW’s ex-wife was one of the applicants for the financial management order, she was, by virtue of s 3F(5) of the Act, a party to the proceedings before the Guardianship 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”) make her a party to the proceedings before the Appeal Panel.

9 GW also submitted that it was not appropriate that the Guardianship Tribunal was “unavailable for cross examination regarding their decision”. 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. It would never be appropriate for members of the Guardianship Tribunal to be cross-examined about their decision.

10 GW’s final submission in relation to the parties to the appeal was that the Protective Commissioner should have appeared before the Appeal Panel. While the Protective Commissioner is also a party to the appeal, because he was a party in the Guardianship Tribunal proceedings (s 3F(5)(f) of the Act), he chose not to play any role in the proceedings before 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. Pursuant to the Guardianship Tribunal’s orders, his only role in this case is to impose conditions on the management of GW’s estate if he considers that appropriate.

11 We find that the existing parties are properly parties before the Appeal Panel.

12 While GW did not specifically raise the issue of procedural fairness, we questioned him about the conduct of the proceedings before the Guardianship Tribunal and any concerns he may have had. GW was concerned that the Guardianship Tribunal had relied on hearsay evidence given by his former wife that he “was affected by a delusional disorder.” The Tribunal is not bound by the rules of evidence (s 55 of the Act) and this evidence was admitted. Admission of the evidence does not disclose an error of law. GW agreed that he had been in a position to hear that evidence and respond to it. Ultimately the Guardianship Tribunal made no finding that GW had a particular disability but merely noted that he had an “unstable psychological state” as evidenced by him being scheduled under the Mental Health Act 1990 on 4 or 5 occasions. GW agreed that the Guardianship Tribunal had given him an opportunity to respond to evidence about his mental state. In any event, under s 25G, the Tribunal does not need to make a finding about the nature or extent of a person’s disability before making a financial management order. We can detect no error of law on this ground.

13 GW did not request the transcript of the proceedings before the Guardianship Tribunal and in any event, Ms Cho, representing the Tribunal, volunteered the information that the transcript was not available as there had been a malfunction in the recording equipment.

14 GW objected to the Guardianship Tribunal’s Reply to his Notice of Appeal in which it was submitted that GW GW be legally represented before the Appeal Panel because of the nature of his disabilities. GW pointed out that there was no evidence of any mental disorder and that he was offended by the Tribunal’s suggestion. While we understand GW’s concern, this question does not relate to the decision that is the subject of this appeal.

15 Having considered GW’s submissions and read the Tribunal’s decision together with the material they had before them, we cannot identify any substantive or procedural error by the Tribunal. The Tribunal afforded GW procedural fairness and applied the correct legal test in making their decision.

Leave to appeal on other grounds

16 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. GW’s reason for requesting leave to appeal against the merits of the decision was as follows:

It is not disputed that financial management orders, in this decision, are made concerning a Christian, a church person. The order does not prevent this person from using his money in the pursuit of his religious vocation yet it does bring the State into a situation of thus having and maintaining control over Church finances. Inadvertently or otherwise, the Guardianship Tribunal, a State body, is endeavouring to control the work of the church.

17 GW submitted that he is worse off since the financial manager was appointed.

18 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.

19 No question of administration or the applicability of policy arose for consideration in this case. There was no suggestion that the Tribunal went about its fact-finding process in an “unorthodox manner”. Although GW disagrees with the Tribunal’s decision, there is nothing from either a procedural or substantive point of view that persuades us that we should grant leave to review the merits of the decision. GW can apply to the Guardianship Tribunal for the financial management order to be revoked or varied under s 25R of the Act. If such an application is made, the Guardianship Tribunal would be able to accept any fresh evidence of GW’s current situation and determine whether to vary or revoke the order. In those circumstances we make the following orders:

1. The decision of the Guardianship Tribunal made on 23 May 2003 is affirmed.

2. Appeal dismissed.