Hess v Public Guardian

[2005] NSWADTAP 43

Appeal Panel - External

CITATION:	Hess v Public Guardian & anors [2005] NSWADTAP 43
PARTIES:	APPLICANT Joseph Hess FIRST RESPONDENT Public Guardian SECOND RESPONDENT Protective Commissioner THIRD RESPONDENT QH FOURTH RESPONDENT QI DECISION MAKER Guardianship Tribunal
FILE NUMBER:	058008
HEARING DATES:	05/08/05
SUBMISSIONS CLOSED:	08/05/2005
DATE OF DECISION:	09/05/2005
DECISION UNDER APPEAL:	2004/7153, 2004/7152
BEFORE:	Hennessy N - Magistrate (Deputy President); Millar J - Judicial Member; Houlahan L - Non Judicial Member
CATCHWORDS:	Financial management order - making - Guardianship order - making
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	C/30477
DATE OF DECISION UNDER APPEAL:	04/01/2005
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Guardianship Act 1987 Protected Estates Act 1983
CASES CITED:	Collection House Ltd v Taylor (2004) VSC 49 KA v Public Guardian & Ors (2004) NSWADTAP 25 Carew v Protective Commissioner & Ors (2005) NSWADTAP 13 KV v Protective Commissioner & Ors; KW & Ors v KV & Ors (No 2) (2004) NSWADTAP 48 Rajski v Scitec Corporation Pty Ltd (Court of Appeal, unreported, 16 June 1986)
REPRESENTATION:	APPELLANT K Grinberg, solicitor RESPONDENTS E Cho, solicitor S Free, solicitor
ORDERS:	1. That the financial management order made by the Guardianship Tribunal on 1 April 2005 in relation to QI be set aside; 2. That the limited guardianship order made by the Guardianship Tribunal on 1 April 2005 in relation to QI be set aside; 3. That the application for guardianship and financial management orders filed 30 December 2004 with the Guardianship Tribunal be remitted to that Tribunal for rehearing.

Introduction

1 QI is a 72 year old woman who resides in a nursing home in the eastern suburbs. She was admitted to hospital on 26 November 2004 following a fall at her home. She was discharged to the nursing home on 20 December 2004. In the opinion of Dr N Brennan, geriatrician, contained in a report dated 7 March 2005, QI had significant cognitive impairment.

2 On 30 December 2004 QI's adult son applied to the Guardianship Tribunal for the appointment of a guardian for QI and for a financial management order in relation to her property and affairs under the Guardianship Act 1987. That application was heard by the Guardianship Tribunal on 1 April 2005. Among the persons who attended the hearing were QI, her son and Mr Joseph Hess. In his application to the Tribunal the son provided Mr Hess' name and address in that part of the application that asks for "Carer Details". In the Tribunal's Reasons for Decision Mr Hess was described as a "supportive friend/carer" who was said to visit QI daily in the nursing home. Apparently, the application had been made to the Tribunal because of a belief on the part of the son that Mr Hess had been manipulating QI.

3 At the conclusion of the hearing the Tribunal made a guardianship order placing QI under guardianship and appointing the Public Guardian as her guardian for a period of 12 months. The functions of the Public Guardian were to make decisions with respect to QI’s accommodation, health care, consents to medical and dental treatment and the provision of services to which she should have access. The Tribunal also made orders that the estate of QI be subject to management under the Protected Estates Act 1983 and that management of her estate be committed to the Protective Commissioner.

4 On 18 May 2005 Mr Hess lodged a Notice of Appeal to the Appeal Panel of the Administrative Decisions Tribunal against the orders made by the Guardianship Tribunal. At the hearing before the Appeal Panel no transcript of the proceedings before the Guardianship Tribunal was available. The tape recordings of the proceedings before the Guardianship Tribunal were available. Ms Grinberg, solicitor for Mr Hess, listened to the tape but reported that they were of poor quality. We did not listen to the tapes.

Parties, representation and jurisdiction

5 The Protective Commissioner and the Public Guardian each filed a Reply dated 26 May 2005 in which it was indicated that neither wished to present a case or make submissions to the Appeal Panel. Pursuant to r41A(2) of the Administrative Decisions Tribunal Rules the Appeal Panel appointed the Crown Solicitor as a person to assist the Tribunal in these proceedings. Mr S Free, solicitor, represented the Crown Solicitor to assist the Tribunal. Ms K Grinberg, solicitor, appeared for Mr Hess. Ms Esther Cho, legal officer of the Guardianship Tribunal, appeared for the Guardianship Tribunal. On 21 June 2005 the Tribunal filed a Notice of Reply to Appeal in which it was indicated that a representative of the Tribunal would be available at the hearing of the appeal to provide comment on the Tribunal's practices and procedures. Ms Cho appeared for that purpose. The Appeal Panel's jurisdiction to hear external appeals comes from s67A of the Guardianship Act 1987 ("the Act") and s118A 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 (s118B(1) of the ADT Act).

Appellant's submissions

6 In the Notice of Appeal the appellant set out the following reasons for appealing on a question of law:

(a) failure to give sufficient notice of expert evidence and reports and adequate opportunity to respond;

(b) failure to take into account the applicant's suitability as guardian or the applicant's view as required under s41;

(c) undue weight being given to hearsay evidence and failure to consider or insufficient weight being given to relevant evidence before the Tribunal

7 The Tribunal was assisted by written submissions from Ms Grinberg dated 8 July 2005 together with further oral submissions made at the hearing. Ms Grinberg's written submissions were accompanied by a report of Dr Nathan Glattstein dated 29 June 2005.

8 By her submissions Ms Grinberg informed the Tribunal that Mr Hess is aged 73 years and has been in a close relationship with QI for five years. During the period of five years Mr Hess has lived with QI from time to time but has also maintained his own home. Mr Hess claims to be the de facto husband of QI. Ms Grinberg informed the Tribunal that the son left home when he was 18 years old and is married with two children. Ms Grinberg asserted in her submissions that the son visited his mother from time to time but had limited knowledge of his mother's financial, social and medical affairs. It was said that the son does not have a good relationship with Mr Hess but that he has continued to visit his mother during the past five years including while she was in hospital.

9 With respect to the expert evidence used at the hearing before the Guardianship Tribunal, Ms Grinberg submitted that Mr Hess did not receive a copy of the reports of a social worker, Ms J Pratt, dated 20 January 2005 or of Dr N Brennan dated 7 March 2005. Those reports were not interpreted for Mr Hess. Mr Hess, like QI, is of Hungarian ethnic background and does not speak or read English. It was submitted that the expert reports were central to the Tribunal's decision-making process and that some assistance should have been given to Mr Hess in dealing with the expert evidence to ensure procedural fairness. It was submitted that Mr Hess was at a disadvantage at the hearing before the Guardianship Tribunal in that he was unrepresented and accordingly, was unaware of the options available to him when faced with the use of two expert reports by the Tribunal in determining the application before it.

10 It was further submitted by Ms Grinberg that undue weight was given by the Guardianship Tribunal to the expert evidence. Although Dr Brennan's report was dated 7 March 2005, the report revealed that he had not seen QI since 20 December 2004 when she was discharged from hospital. No later medical evidence was available to the Tribunal at the time of the hearing on 1 April 2005. It was submitted that her condition could well have improved in the time between Dr Brennan's lasts observation of her and the date of hearing before the Guardianship Tribunal.

11 Further, it was submitted that there were interpretation problems at the hearing before the Guardianship Tribunal in relation to the interpreting of the questions asked by the Tribunal of QI and her answers to those questions. It was submitted that QI was able to answer the questions asked of her in both English and Hungarian. Ms Grinberg took issue in her submissions with the failure of the Tribunal to pursue a number of answers given by QI to questions asked of her. It was submitted that the interpretation problems evident from the tapes of the hearing gave rise to a suggestion of confusion on the part of QI in answering the Tribunal's questions when the real problem was that the questions and answers had not been correctly interpreted. Ms Grinberg, who informed the Tribunal at the hearing of the appeal that she speaks and understands the Hungarian language, had listened to the tapes of the hearing before the Guardianship Tribunal. She relied on her own knowledge of the languages to make the submissions which she did concerning problems said to have arisen from the quality of interpreting done during the hearing.

12 Ms Grinberg submitted that although Dr Brennan had expressed a fear that QI may be exploited, the Guardianship Tribunal made no finding of exploitation. Similarly, although the son had alleged in the application that Mr Hess was manipulating his mother, Ms Grinberg submitted that no evidence was led at the hearing before the Guardianship Tribunal in support of any allegation of manipulation. Ms Grinberg noted that there was no adverse finding made against Mr Hess in relation to his dealings with QI's financial affairs.

13 Ms Grinberg submitted that once the Tribunal decided to appoint a guardian and financial manager for QI it erred by regarding the mere existence of conflict between Mr Hess and the son as sufficient reason to not appoint Mr Hess as either guardian or financial manager of QI. It was submitted that there was no evidence before the Tribunal to the effect that Mr Hess had acted otherwise than in the best interests of QI and that allegations of manipulation or exploitation had not been substantiated.

Crown Solicitor's submissions

14 Mr S Free, solicitor, made oral submissions to the Tribunal to assist it in determining the appeal. On 27 July 2005 Mr Free filed written submissions with the Tribunal which set out in detail the relevant legal principles applying to the grounds of appeal and the authorities which support those principles.

15 Mr Free referred to a number of decisions of the Appeal Panel of the Tribunal which deal with the requirement of the Guardianship Tribunal to afford procedural fairness to persons whose interests are affected by the Tribunal's decisions. In particular, Mr Free referred to KA v Public Guardian & Ors (2004) NSWADTAP 25, Carew v Protective Commissioner & Ors (2005) NSWADTAP 13 and KV v Protective Commissioner & Ors; KW & Ors v KV & Ors (No 2) (2004) NSWADTAP 48.

16 Mr Free submitted that Mr Hess had a sufficient interest in the proceedings before the Guardianship Tribunal that he was entitled to be afforded procedural fairness. He held an authority to operate QI's bank account and he had been in the role of a carer to QI at the time of the proceedings before the Guardianship Tribunal. Mr Free submitted that considering the question of whether Mr Hess was given a reasonable opportunity to respond to the expert evidence which the Tribunal took into account at the hearing it was necessary to consider whether the material in question related to matters that were in dispute before the Guardianship Tribunal. Mr Free submitted that there was no indication from the Guardianship Tribunal's Reasons for Decision that there was any serious dispute concerning QI's mental incapacity. Further, Mr Free submitted that it was significant that, according to the Tribunal's Reasons for Decision, Mr Hess did not request time in which to challenge the expert evidence contained in the reports of Dr Brennan and Ms Pratt nor did he seek an adjournment for the purpose of leading his own expert evidence to answer the evidence of those witnesses.

17 Mr Free submitted that if the Appeal Panel held that Mr Hess was not given an adequate opportunity to respond to the expert reports at the hearing before the Guardianship Tribunal it would be difficult to argue that this had no bearing on the outcome of that hearing and a failure to give Mr Hess an adequate opportunity to respond went to the heart of the Guardianship Tribunal's decision. Mr Free submitted that the Guardianship Tribunal had taken into account sufficiently the suitability of Mr Hess as a potential guardian for QI and took his views in relation to the application into account before reaching its decision. He submitted that it was open to the Guardianship Tribunal to consider that the conflict between Mr Hess and the son was sufficient to result in neither person being appointed as guardian or financial manager for QI.

Evidence from Mr Hess

18 Because of the absence of a transcript and the difficulties parties experienced in understanding the tape recordings, the Tribunal invited Mr Hess to give evidence as to what had occurred during the Guardianship Tribunal hearing. He was assisted by a Hungarian interpreter. Mr Hess said that he did not see Dr Brennan's report prior to the hearing. He said that the report was mentioned during the hearing and he was given a copy of the report to look at during the hearing. Mr Hess said that no one read the report to him in English or Hungarian, nor was it summarised for him. He was aware that the hospital doctor (presumably Dr Brennan) had given an “unfavourable” report about him and about QI. Mr Hess does not understand or read English and when shown a copy of Dr Brennan's report during his evidence he did not recognise it as the document he had seen duri Because of the absence of a transcript and the difficulties parties experienced in understanding the tape recordings, the Tribunal invited Mr Hess to give evidence as to what had occurred during the Guardianship Tribunal hearing. He was assisted by a Hungarian interpreter. Mr Hess said that he did not see Dr Brennan's report prior to the hearing. He said that the report was mentioned during the hearing and he was given a copy of the report to look at during the hearing. Mr Hess said that no one read the report to him in English or Hungarian, nor was it summarised for him. He was aware that the hospital doctor (presumably Dr Brennan) had given an “unfavourable” report about him and about QI. Mr Hess does not understand or read English and when shown a copy of Dr Brennan's report during his evidence he did not recognise it as the document he had seen during the hearing before the Guardianship Tribunal. Mr Hess gave evidence that he did not see Ms Pratt's report at all.

19 It was apparent to the Appeal Panel during Mr Hess' evidence that he was a person who would be unable to protect his interests in the hearing of a legal proceeding by reason of his inability to speak and read English, his inability to understand the proceedings and his inability to assert himself. In particular, he would not have realised that he could have applied for an adjournment of proceedings to consider the expert reports or to obtain advice about his options having regard to those reports. Nor did he appreciate that he could present his own evidence concerning the application for guardianship and financial management orders.

Procedural fairness

20 In KA v Public Guardian & Ors (2004) NSWADTAP 25, the Appeal Panel of the Tribunal said:

When making decisions, the Guardianship Tribunal must afford procedural fairness to any person whose ‘interests, rights or legitimate expectations' are affected. ( Kioa v West (1985) 159 CLR 550 at 584 per Mason J; see also 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 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 58). In the ordinary case, a person whose interests, rights or legitimate expectations are affected should be given an opportunity to deal with adverse information that is ‘credible, relevant and significant to the decision to be made' ( Kioa v West, Brennan J at 629). While all documents which contain adverse material do not necessarily have to be provided to a party, the substance or gravamen of the material should be disclosed.

21 In considering whether there has been a denial of procedural fairness regard must be had to the issues in the proceedings. The Tribunal set out the issues at para 4.2 of its Reasons for Decision. The first issue identified was whether QI was "a person in need of a guardian within the definition in s3 of the Act". The phrase "person in need of a guardian" is defined in s3 of the Guardianship Act to mean a person who, because of a disability, is totally or partially incapable of managing his or her person. In determining that issue, the Tribunal had regard to the expert evidence of Dr Brennan and Ms Pratt as set out in their reports of 7 March 2005 and 20 January 2005 respectively. This evidence was central to the Tribunal's findings with respect to whether QI was a person in need of a guardian as defined in s3 of the Act and its finding as to whether QI was incapable of managing her financial affairs, being a necessary prerequisite to the making of a financial management order: s25G of the Guardianship Act 1987. According to Mr Hess' evidence at the hearing of the appeal, he had never seen the report of Ms Pratt dated 20 January 2005 and first saw Dr Brennan's report dated 7 March 2005 during the hearing before the Guardianship Tribunal.

22 The Tribunal's Reasons for Decision do not identify whether Mr Hess was asked for his response in relation to each of the issues identified at paragraph 4.2 of the Tribunal's Reasons for Decision. The Reasons do not record any evidence being taken from Mr Hess other than a statement on p7 of the Reasons to the effect that Mr Hess was of the view that he was a "husband" to QI and a reference on p8 of the Reasons to the fact that Mr Hess has continued to draw moneys on the account of QI and that he explained to the Tribunal that there were still fees to be paid for QI.

23 It is clear from Mr Hess’s evidence before the Appeal Panel and the submissions made on his behalf by Ms Grinberg, that Mr Hess disputed that QI was a person who was totally or partially incapable of managing her person by reason of a disability. Ms Grinberg provided the Appeal Panel with a report of Dr N Glattstein, QI’s general practitioner, dated 29 June 2005. Fresh evidence is not normally taken into account unless the appeal is extended to the merits of the Guardianship Tribunal’s decision. We accepted the report only as evidence of the fact that Mr Hess could have obtained his own evidence and provided it to the Guardianship Tribunal. Without reaching any view as to the correctness of Dr Glattstein’s observations, those observations could have affected the result of the proceedings since he came to a different conclusion from that of Dr Brennan with respect to QI's capacity to make decisions.

24 During the hearing before the Guardianship Tribunal Mr Hess did not ask for a copy of the reports of Dr Brennan or Ms Pratt. He did not ask to have them interpreted to him in the Hungarian language, nor did he seek an adjournment of the hearing either for a short time or to another day to enable him to consider the reports and decide whether he should obtain evidence in reply if he was able to do so from other experts. However, from Mr Hess' presentation while giving evidence at the hearing of the appeal, it was clear that he is a person who would be unlikely to appreciate that those options were available to him in order to meet the evidence which was being taken into account by the Tribunal.

25 In Collection House Ltd v Taylor (2004) VSC 49 at [27], Nettle J of the Supreme Court of Victoria, in hearing an appeal from a decision of the Victorian Civil and Administrative Tribunal, said:

‘ That is not to say that the Tribunal exists to provide legal advice to parties that appear before it or even that it would be appropriate for the Tribunal to provide legal advice to parties. It does not and it would not be. But there is a difference between providing legal advice and explaining in the course of hearing to unrepresented litigants the nature and effect of the various processes which are being undertaken and as to the steps open for the litigants to take. In that sense, a higher burden of explanation and assistance may fall upon a member of the Tribunal than would fall upon a judge in a curial proceeding in which the parties are represented by counsel. ...

If counsel ask a judge whether further evidence would be of assistance to the court, counsel may properly be told that the way in which they run their case is a matter for them. But if a lay person asks an Administrative Tribunal whether further evidence on an issue would be of assistance to the Tribunal, depending on the circumstances, the Tribunal will need to say if it could be. Otherwise, there is a risk of causing the person to take a mistaken view of the state of affairs relating to the manner in which they might chose to conduct their case. That in itself would be a denial of natural justice."

26 In Rajski v Scitec Corporation Pty Ltd (Court of Appeal, unreported, 16 June 1986), Mahoney JA said:

"When a party appears in person he will ordinarily be at a disadvantage. That does not mean that the Court will give to the other party less than he is entitled to. Nor will it confer upon the party in person advantages which, if he were represented, he would not have. But the Court will, I think, be careful to examine what is put to it by a party in person to ensure that he has not, because of the lack of legal skill, failed to claim rights or to put forward arguments which otherwise he might have done".

27 In the same case, Samuels JA said:

“ In my view the advice and assistance which a litigant in person ought to receive from the Court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored".

28 We are satisfied that Mr Hess did not have a sufficient opportunity to consider the evidence contained in the reports of Dr Brennan and Ms Pratt prior to the hearing on 1 April 2005. The reports were not interpreted to Mr Hess and he could not read them. He was not informed that he had the option of asking for an adjournment either for a short period of time or to another day to enable him to consider the expert evidence and to obtain expert evidence from a medical practitioner chosen by him. It seems clear that Mr Hess was opposed to the appointment of either a guardian or financial manager for QI. The Reasons for Decision of the Guardianship Tribunal do not record Mr Hess' views in relation to each of the issues identified at paragraph 4.2 of those Reasons. Accordingly, having regard to the evidence now obtained by Mr Hess from Dr Glattstein in the report dated 29 June 2005, Mr Hess wishes to dispute that QI is incapable of managing her person and incapable of managing her financial affairs.

29 In view of the failure of the Tribunal to inform Mr Hess of the options available to him when presented with expert evidence in a language he could not read, Mr Hess was denied procedural fairness at the hearing. It cannot be said in this case that the error of law resulting from a denial of procedural fairness did not materially affect the Tribunal's decision. If Mr Hess had applied for and been granted an adjournment he may have been able to obtain expert evidence to the contrary of that contained in the reports of Dr Brennan and Ms Pratt. Consequently, there is no alternative but to set aside the decision of the Tribunal to make guardianship and financial management orders in relation to QI.

30 As Mr Hess may wish to adduce evidence concerning QI's incapacity to manage her person and financial affairs, including the evidence now available from Dr Glattstein, the Tribunal is of the view that it is appropriate to set aside the orders made by the Guardianship Tribunal and remit the matter to the Tribunal for rehearing. Having come to this conclusion, there is no need for us to deal with the other grounds of appeal.

Orders

1. That the financial management order made by the Guardianship Tribunal on 1 April 2005 in relation to QI be set aside.

2. That the limited guardianship order made by the Guardianship Tribunal on 1 April 2005 in relation to QI be set aside.

3. That the application for guardianship and financial management orders filed 30 December 2004 with the Guardianship Tribunal be remitted to that Tribunal for rehearing.