HA v Protective Commissioner
[2009] NSWADTAP 32
•20 May 2009
Appeal Panel - External
CITATION: HA v Protective Commissioner [2009] NSWADTAP 32 PARTIES: Appellant:
HA1st Respondent:
Protective Commissioner2nd Respondent:
GP3rd Respondent:
4th Respondent:
GN
GOFILE NUMBER: 088022 HEARING DATES: 6 April 2009 SUBMISSIONS CLOSED: 6 April 2009
DATE OF DECISION:
20 May 2009BEFORE: Hennessy N - Magistrate (Deputy President); Millar J - Judicial Member; Wunsch A - Non-Judical Member CATCHWORDS: Duty to self-represented parties - procedural fairness - failure to have regard to relevant evidence. FILE NUMBER UNDER APPEAL: C/35159; 2008/3686 LEGISLATION CITED: Guardianship Act 1987
Administrative Decisions Tribunal Act 1997CASES CITED: Dietrich v the Queen [1992] HCA 57; (1992) 177 CLR 292
R v Australian Broadcasting Tribunal; ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13
P v P (1994) 181 CLR 583
Italiano v Carbone [2005] NSWCA 177
Titan v Babic (1994) 49 FCR 546
Dissanayake v Baldacchino [2000] NSWRT 216
Warwick Entertainment Centre Pty Ltd v McKenzie [2000] WASCA 280
Ory and Ory v Betamore Pty Ltd (in liq) (1993) 60 SASR 393
Mitchell v Canal Rocks Beach Resort [2002] WASCA 331
Aboriginal Sacred Sites Protection Authority v Maurice (1986) 65 ALR 247
EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501
Northern Territory of Australia v Herbert & Anor [2002] NTSC 4A and B v Director of Family Services (Unreported, ACT Supreme Court, Higgins J, 31 May 1996)
Re Refugee Review Tribunal; ex parte Aala (2000) 75 ALJR 52
Kioa v West (1985) 159 CLR 550
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Collection House Ltd v Taylor (2004) VSC 49
Rajski v Scitec Corporation Pty Ltd (Unreported, Court of Appeal, 16 June 1986)REPRESENTATION: Appellant Representative:
Mr P Livers, solicitor2nd Resp Representative:
Ms M Chaperlin, solicitor3rd & 4th Resp Representative:
Decision Maker:
Mr P Fazio, solicitor
Ms E Cho, solicitorORDERS: 1. The Tribunal’s decision to confirm the financial management order made on 5 February 2007 in relation to GA is set aside.
2. The matter is remitted to the Tribunal to be re-determined in accordance with these reasons.
3. These orders come into effect 60 days from the date of these reasons.
Introduction
1 GP is an elderly woman of Greek background who lives with her adult daughter, HA. In 2006, the Guardianship Tribunal made a financial management order in relation to GP and appointed HA as the financial manager. Two months later, the Tribunal varied its decision by appointing the Protective Commissioner. HA applied to the Guardianship Tribunal to revoke that order on the basis that her mother had regained capacity. The Guardianship Tribunal found that GP was still incapable of managing her financial affairs and refused to revoke the order. HA has appealed against that decision. The grounds of appeal were firstly, that the Guardianship Tribunal had not allowed HA the opportunity to present evidence from Dr Morfis of GP’s capacity, and secondly, that the Tribunal had made findings when there was no evidence to support those findings. Two of HA’s siblings, GN and GO, opposed the appeal.
2 Following the hearing the Appeal Panel wrote to the parties requesting that they provide further submissions on two questions, namely:
2. whether the Tribunal was obliged to inform HA of her right to apply for an adjournment, either within the same day or to another day, in order that she could obtain the report of Dr Morfis to tender as evidence or to call Dr Morfis to give oral evidence at the hearing.1. whether the Guardianship Tribunal was obliged to inform HA, who was an self-represented party, of the options available to her to obtain and tender the report of Dr Morfis at the hearing or to adduce oral evidence from Dr Morfis by telephone during the hearing in the event that the Tribunal decided not to do so; and
Parties and representation
3 The Protective Commissioner is the first respondent but she chose not to play any role in the proceedings. All other parties, including the Guardianship Tribunal, were legally represented.
Appeal Panel’s jurisdiction
4 The Appeal Panel's jurisdiction to hear external appeals comes from s 67A of the Guardianship Act 1987 (Guardianship 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: ADT Act, s 118B(1). HA appealed only on questions of law.
Legislative framework
5 Any person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the protected person may apply for an order revoking or varying a financial management order: s 25R of the Guardianship Act. Pursuant to s 25P, 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).
6 HA applied for a revocation of the order on the first basis, that is that GP had regained capacity.
Failure to obtain report or contact doctor
7 Application form. The first ground of appeal was that the Guardianship Tribunal failed to give HA an opportunity to present evidence from Dr Morfis even though HA had advised the Tribunal that she wished to present that evidence. The two issues that the Appeal Panel asked the parties to address are related to this ground.
8 The form which HA completed to apply for the order to be revoked notes that:
Where the application is to revoke the financial management order on the grounds that the protected person has regained their capacity to manage their affairs, the Guardianship Tribunal will require recent and independent evidence of the current ability of the protected person to manage their own affairs.
Your application should therefore be accompanied by at least one professional report detailing the qualifications of the author, the protected person’s current ability and the basis for the professional’s opinion.
9 In response to this question, HA wrote the name, address and phone number of Dr Litsa Morfis. No report from Dr Morfis was attached. Instead, HA attached a report from Ms Kit Bray, a clinical psychologist, dated 14 January 2008, nine months prior to the hearing. That report concluded that:
Based upon results obtained during the neuropsychometric assessment and competency assessment it appears that [GP] retains the cognitive competency to manage her own financial affairs. This decision, however, is ultimately a legal one.
10 Availability of Dr Morfis.
During the hearing on 7 October 2008, HA mentioned that her mother had seen a geriatrician, Dr Morfis, on 13 August 2008. The Presiding Member asked if there was a report from Dr Morfis for the hearing. HA said that she had put it in when applying for the revocation of the order. As we have said, although HA ticked the box on the application form saying that she had attached a report from Dr Morfis, the report she actually attached was from Ms Kit Bray. HA told the Guardianship Tribunal during the hearing that Dr Morfis had her report with her. HA’s son added that he thought Dr Morfis was available to be contacted by phone (Transcript page 5). That observation accords with a file note tendered at the hearing of this appeal by Ms Cho, representing the Guardianship Tribunal, dated 17 September 2008. The file note is from Louise Smith, Senior Investigation Officer, recording that a person from Dr Litsa Morfis’ rooms had rung to say Dr Morfis could not attend the hearing but was contactable by mobile phone on the day of the hearing. The caller provided the number on which she could be contacted. Ms Smith prepared a Report prior to the hearing which included Dr Morfis on the list of contacts for the hearing but did not record any contact details.
11 Discussion during hearing. HA told the Guardianship Tribunal at the hearing that Dr Morfis was a specialist geriatrician at St George Hospital. The Professional Member of the Tribunal then commented that she was ‘Just a doctor for the elderly. Not a psychiatrist or a psychologist’. The Presiding Member then said, ‘It would have been handy to have . . . actually had a report from her, you know, like Dr Bray.’ HA then said, ‘She said if they need to . . . they can ring me anytime. She’s got the report there just in case.’ (Transcript page 5).
12 Decision not to obtain Dr Morfis’ evidence. Following the hearing, the Guardianship Tribunal adjourned briefly. After reconvening, the Presiding Member said that, ‘We are not convinced that [GP] that you are capable of managing your affairs and that comes because of a combination of Dr (sic) Bray’s report and the evidence we have seen today even taking into account the potential difficulties in our questions and your understanding of them.’ He went on to say, ‘. . . we should stress that we are doing that because the report was in January and there is not anything before us from the geriatrician but, in fact, we didn’t ring the geriatrician because Dr (sic) Bray’s report is very comprehensive and it has some good things that help us and some things that would indicate otherwise. But this will all come out in my reasons that we put together but, frankly, we would have needed a report from a psycho-geriatrician at the least. A specialist psycho-geriatrician.’ (Transcript pages 46 and 47). This comment suggests that the Guardianship Tribunal made a conscious decision not to telephone Dr Morfis to obtain her evidence because they formed the view that evidence from a geriatrician would not have assisted them in reaching a decision.
13 Submissions. Mr Livers, representing HA, submitted that the Tribunal had made an error of law by not either telephoning Dr Morfis to obtain her evidence or organising for her report to be available to the Tribunal. He provided a copy of Dr Morfis’ report dated 10 September 2008 to the Appeal Panel. The report confirms HA’s comment to the Tribunal that a report existed at the time of the hearing and that Dr Morfis, a Staff Specialist in geriatric medicine at St George Hospital, had reviewed GP on 13 August 2008. The content of that report is not relevant for the purpose of determining whether or not the Tribunal made an error of law.
14 In response to the Appeal Panel’s request for further submissions, Mr Livers said that the GT was obliged both:
2. to inform HA of her right to apply for an adjournment, either within the same day or to another day, in order that she could obtain the report of Dr Morfis to tender as evidence or to call Dr Morfis to give oral evidence at the hearing.1. to inform HA of the options available to her to obtain and tender the report of Dr Morfis at the hearing or to adduce oral evidence from Dr Morfis by telephone during the hearing in the event that the Tribunal decided not to do so; and/or
15 In support of that submission, Mr Livers relied on the High Court’s decision in Dietrich v the Queen [1992] HCA 57; (1992) 177 CLR 292 to the effect that a decision maker is obliged to make it known to an accused person what procedural choices are available, but to refrain from advising that person. With respect, we agree with Mr Fazio representing two of HA’s siblings, that that decision is of very limited relevance. Mr Fazio submitted that HA was not denied procedural fairness and that the decision maker must remain neutral. According to Mr Fazio legal representation was available to HA but in any case, she had previous experience of Guardianship Tribunal proceedings and was not taken by surprise. It was Mr Fazio’s understanding that Dr Morfis’ report was available to HA at least a month prior to the hearing but she chose not to present it. Finally, Mr Fazio said that even if the report had been before the Guardianship Tribunal it would not have changed ‘the weight of evidence’ in favour of HA. Each respondent submitted that the Tribunal had made no error because the Tribunal is not obliged to consider evidence that is not before it.
16 Ms Cho, on behalf of the Guardianship Tribunal, also made a submission in relation to its practices and procedures in accordance with the principles outlined by the High Court in R v Australian Broadcasting Tribunal; ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 at 35. It is the GT’s practice for an officer of the Co-ordination and Investigation Unit to prepare proceedings for hearing. That involves providing support and information to all parties about the process including answering questions about providing written information. Ms Cho went on to say that the GT aims to provide an efficient and timely service to parties and conducts its proceedings in an investigative manner. She said it is the Tribunal’s practice to enquire about further evidence which is relevant to the issues before the Tribunal. If the Tribunal is satisfied that evidence, such as medical reports, are consistent in relation to an issue, the Tribunal may not pursue further reports. The Tribunal also takes into consideration the qualifications of the authors of reports before determining whether to pursue other reports.
Reasoning and conclusion
17 Section 59 of the Guardianship Act gives parties certain statutory rights in relation to proceedings before the Tribunal. That section provides that:
A party to proceedings before the Tribunal may:
(a) call and examine any witness,
(b) cross-examine any witness called by another party,
(c) give evidence on oath,
(e) otherwise adduce, orally or in writing, to the Tribunal such matters, and address the Tribunal on such matters, as are relevant to the proceedings.(d) produce documents and exhibits to the Tribunal, and
18 In addition, the Tribunal may compel a witness to attend a hearing and answer relevant questions: ss 60 and 61 of the Guardianship Act. These provisions are all hallmarks of adversarial proceedings involving disputes between parties. In P v P (1994) 181 CLR 583 at 634, McHugh J said that the ‘powers and procedures’ outlined in an earlier, but substantially similar, version of these provisions ‘resemble those of the established courts’. However, rather than resolving a dispute between parties, the Tribunal’s jurisdiction is essentially protective with the focus being on the person who is the subject of an application for a guardianship or financial management order. The only procedural accommodation of this role are provisions which are common to many tribunals, including:
a) not being bound by the rules of evidence and ‘inform[ing] itself on any matter in such manner as it thinks fit’: s 55(1);
b) conducting proceedings ‘with as little formality and legal technicality and form as the circumstances of the case permit’: s 55(2); and
c) requiring leave before a party can be represented by a barrister, solicitor or agent: s 58(1).
19 The fact that the Tribunal is not bound by the rules of evidence and may ‘inform itself on any matter in such manner as it thinks fit’ does not detract from its statutory or common law responsibilities in relation to procedure. Although proceedings may be conducted informally, they ‘must be conducted according to law’ and ‘the discretion given to the Tribunal must be exercised judicially’: Dissanayake v Baldacchino [2000] NSWRT 216; Warwick Entertainment Centre Pty Ltd v McKenzie [2000] WASCA 280 at [10]; Ory and Ory v Betamore Pty Ltd(in liq) (1993) 60 SASR 393 at 414 per Duggan J; Mitchell v Canal Rocks Beach Resort [2002] WASCA 331 at [38]-[44]. Such a provision does not override the rules of evidence, but calls for the Court to exercise its judgment as to the manner in which it will inform itself of any matter in dispute before it. 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: 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.
20 Self-representation is the norm in GT proceedings. Notwithstanding the existence of the Co-ordination and Investigation Unit and the fact that the GT conducts its proceedings in an investigative manner, the GT owes self-represented parties several duties, including a duty to ensure that they understand what needs to be established before an order is made and that they are not disadvantaged in the relation to the manner in which their case is presented. Tribunals are obliged, for example, to offer a self-represented party an adjournment, even if one was not sought, if that person would otherwise be disadvantaged in relation to the presentation of their case: Italiano v Carbone [2005] NSWCA 177; Titan v Babic (1994) 49 FCR 546; Collection House Ltd v Taylor (2004) VSC 49; Rajski v Scitec Corporation Pty Ltd (Unreported, NSW Court of Appeal, 16 June 1986).
21 The need to allow parties to guardianship and financial management applications to have the proceedings adjourned to address adverse material was highlighted by Young J in EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501 (28 May 1999). The Supreme Court said at [43], that
. . . the Tribunal must give the defendant or applicant the chance of contradicting material which is put before it and if need be, may have to grant an adjournment for that to be done. In a tribunal such as the present where lawyers are only allowed with the permission of the tribunal, a tribunal may indeed have a duty to point out to an applicant or defendant that if he or she does consider that an adjournment is needed, they have a right to ask for it. It may not be sufficient in any particular case to just say to an unrepresented person at the end of evidence which has been given by telephone (or by a witness personally present) against them for the first time, of which they had no notice, that they can ask questions over the telephone of the witness if they want to.
22 In this case the application for revocation of the financial management order was made on the basis that GP had regained capacity. Despite the fact that the GT conducts its proceedings in an investigative manner, the onus is on the applicant to establish, on the balance of probabilities, that this has occurred. HA nominated Dr Morfis on the application form as a person on whose evidence she wished to rely but did not provide a report from her. Dr Morfis contacted the Guardianship Tribunal prior to the hearing with her contact details. HA made it clear during the hearing that Dr Morfis was available to give evidence by phone and that she had her report with her. Despite taking those steps, the Guardianship Tribunal decided not to telephone Dr Morfis or to advise HA that she was entitled to ask for an adjournment so that the report could be obtained.
23 Dr Morfis’ evidence was recent and directly relevant to the issue in dispute, namely GP’s capacity to manage her financial affairs. In circumstances where the onus is on the applicant to establish capacity, the Guardianship Tribunal is obliged to ensure that that person, if self-represented, is not disadvantaged in the relation to the manner in which their case is presented. It is no answer to that obligation that the Guardianship Tribunal has formed a view that the evidence will not be of any great weight or assistance. A real injustice flowed from the fact that the Guardianship Tribunal chose not to inform GP of the options available to her in relation to Dr Morfis’ report. We regard that as an error of law, which justifies the decision being set aside.
Making findings with no evidence to support those findings
24 GA’s second ground of appeal was that the Tribunal failed to give sufficient weight to the evidence and made findings with no evidence to support those findings. It is well known that failure to give ‘sufficient weight’ to the evidence is not an error of law. The Tribunal is legally obliged to make findings of fact based on logically probative evidence. The classic statement of the law on when a finding of fact can constitute an error of law was made by the Court of Appeal in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 per Glass JA with whom Samuels JA agreed at 155-156:
To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of a jury is vitiated in this way, it will be set aside because it is wrong in fact.
25 This is sometimes called the ‘no evidence’ rule and is often regarded as an element of procedural fairness. In this case, the Guardianship Tribunal had before it evidence, including Ms Bray’s report and the Tribunal’s observations of GA at the hearing, which supported the Tribunal’s findings. The fact that Ms Bray’s view was that GA did have capacity does not mean that the Tribunal made an error by not adopting that view.
2. The matter is remitted to the Tribunal to be re-determined in accordance with these reasons.1.The Tribunal’s decision to confirm the financial management order made on 5 February 2007 in relation to GA is set aside.
3. These orders come into effect 60 days from the date of these reasons.
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