HJ v HK
[2008] NSWADTAP 75
•24 November 2008
Appeal Panel - External
CITATION: HJ v HK & ors [2008] NSWADTAP 75 PARTIES: APPELLANT
HJFIRST RESPONDENT
HKSECOND RESPONDENT
THIRD RESPONDENT
The Protective Commissioner
IJFILE NUMBER: 088007 HEARING DATES: 13 November 2008 SUBMISSIONS CLOSED: 13 November 2008
DATE OF DECISION:
24 November 2008BEFORE: Handley R - Deputy President; Leal S - Judicial Member; Field B - Non-Judicial Member CATCHWORDS: Guardianship Tribunal - financial management order - question of law DECISION UNDER APPEAL: Order replacing financial manager of estate FILE NUMBER UNDER APPEAL: 2007/5274 DATE OF DECISION UNDER APPEAL: 10/14/2008 LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Guardianship Act 1987CASES CITED: Re L [2000] NSWSC 721
Re R [2000] NSWSC 886
Holt v Protective Commissioner (1993) NSWLR 227KA v Public Guardian & Ors [2004] NSWADTAP 25REPRESENTATION: APPELLANT
In personFIRST RESPONDENT
D Patch, barristerSECOND RESPONDENT
THIRD RESPONDENT
No appearance
In personORDERS: (1) The decision under appeal dated 1 February 2008 is set aside and the matter is remitted to the Guardianship Tribunal to be reheard and redetermined in accordance with these Reasons for Decision
(2) The Protective Commissioner is appointed interim financial manager for HK pending redetermination of this matter by the Guardianship Tribunal.
Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision. This states:
(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,
(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,
(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983,
(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 The appellant, HJ, has appealed against a decision of the Guardianship Tribunal dated 1 February 2008 appointing IJ as the financial manager of HK’s estate.
Background
2 HK is a 48 year old woman, born in Malaysia of Malaysian/Chinese background, who migrated to Australia where she worked as a registered nurse. In September 2002, she suffered a subarachnoid haemorrhage due to the rupture of an internal carotid artery aneurysm. The aneurysm was successfully ‘clipped’ during surgery, but, as a result of arterial spasm, she suffered a stroke, leaving her with severe right hemiplegia and significant permanent acquired brain damage: Dr RJ Oakeshott, Surgeon, report dated 2 April 2007. Dr Oakeshott said that, in his opinion, HK requires “24 hour attendant care, 7 days a week for the rest of her life”.
3 HK was formerly married to HJ who was appointed her financial manager by a differently constituted Guardianship Tribunal on 9 May 2003. HJ also acted as HK’s tutor in negligence proceedings brought against her former treating doctors and hospital, which were recently finalised with an award in HK’s favour of over $5 million. HK and HJ have a daughter, aged 10, who lives with HJ and his partner in Brisbane.
4 On 13 August 2007, HJ applied to the Guardianship Tribunal for a review of the financial management order appointing him as HK’s financial manager. He stated that HK would probably soon move from a nursing home in Brisbane to one in Sydney, near her family, and it would no longer be appropriate for him to continue in his role as her financial manager. He therefore proposed that an independent financial manager be appointed for HK. In early December 2007, HK moved from the nursing home where she was living in Brisbane to a nursing home in Sydney.
5 The Guardianship Tribunal conducted a hearing in Sydney on 11 December 2007 at which HJ and HK’s sister, IJ, and HK’s and IJ’s brother gave evidence. The Tribunal was satisfied that HK remained incapable of managing her financial affairs. The Tribunal found that it was in HK’s best interests that HJ’s appointment as her financial manager be revoked, given HJ’s wish to relinquish that position and “the animosity” between HK and HJ and between HK’s siblings and HJ.
6 The Guardianship Tribunal heard evidence as to the suitability for appointment of HK’s sister, IJ, who qualified an accountant in Malaysia before relocating to Australia where she is now a member of the Chartered Practising Accountants Society of Australia. IJ’s appointment was supported by HK, by HK’s and IJ’s brother, who is also living in Sydney, and by a friend. A letter from the Office of the Protective Commissioner stated that HK’s estate exceeded $480,000 in cash and investments. (At this stage, the negligence proceedings instituted on HK’s behalf had not been finalised.) HJ raised concerns about IJ’s handling of certain matters involving HK, and submitted that IJ was not a suitable person for appointment.
7 In weighing up the suitability and fitness of IJ for appointment as HK’s financial manager, the Guardianship Tribunal noted that IJ accepted criticism for errors she made in putting forward HK as the sponsor for the migration to Australia of HK’s and IJ’s brother and his family. The Tribunal found other allegations made by HJ to be unproven. The Tribunal also noted the desire of HK’s family to be together in Sydney and to provide HK with support. The Tribunal concluded that IJ had a close and caring relationship with her sister and that there were no conflicts of interest or any other matter disentitling her to appointment. The Tribunal found that it was in HK’s best interests for IJ to be appointed her financial manager and that IJ was a suitable person to be appointed to this position subject to the supervision and direction of the Protective Commissioner. The Tribunal’s decision was published on 1 February 2008.
8 On 25 June 2008, HJ appealed against this decision to the Administrative Decisions Tribunal citing errors of law by the Guardianship Tribunal in failing to accord him procedural fairness. At a Directions Hearing on 18 August 2008, the External Appeal Panel, exercising the Tribunal’s power under s 57 of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’), granted HJ leave to appeal out of time and made directions for the filing of documents and submissions. The Panel also exercised its power under s 71(4) of the ADT Act to appoint a representative for HK.
9 The Appeal Panel conducted a hearing on 13 November 2008. HJ, HK and IJ appeared in person. The Protective Commissioner declined to present a case or make submissions, although, as noted below, the Appeal Panel sought oral submissions from the Commissioner in the course of the hearing. The representative for HK appointed by the Appeal Panel instructed David Patch, barrister, to represent HK in these proceedings. Ms Cho appeared for the Guardianship Tribunal in order to make submissions on the Tribunal’s practices and procedures.
10 Mr Patch filed written submissions on 12 November 2008. At the hearing on the next day, IJ sought an adjournment of the hearing to enable her to obtain legal advice, especially in relation to factual matters raised by Mr Patch in his submissions. Both HJ and Mr Patch opposed this. Mr Patch submitted that there was some urgency in the appeal being heard because HK’s estate had increased significantly as a result of the finalisation of the negligence proceedings instituted on her behalf.
11 The Appeal Panel accepted Mr Patch’s submission that there was some urgency in the hearing proceeding. The Panel therefore declined IJ’s application for an adjournment, but decided to restrict the hearing on 13 November 2008 to a consideration of the errors of law alleged by HJ, of which IJ had been on notice since the filing of HJ’s appeal. The Panel declined to extend the hearing to a consideration of the factual issues raised by Mr Patch in his written submissions. The Panel stated that if, following the hearing on 13 November, it decided to extend the appeal to the merits, it would reconvene the hearing at a later date allowing time for IJ to seek legal advice. Alternatively, in the event that the Panel found that the Guardianship Tribunal had made errors of law, it was also open to the Panel to set aside the Guardianship Tribunal decision and remit the matter to the Tribunal for rehearing and redetermination.
The Relevant Legislation
12 Section 4 of the Guardianship Act 1987 (‘the Act’) states that it is the duty of everyone exercising functions under the Act with respect to persons who have disabilities to observe certain principles including that “(a) the welfare and interests of such persons should be given paramount consideration”.
13 The Guardianship Tribunal’s power to review the appointment of a financial manager is set out in s 25C, which states relevantly:
(1) The Tribunal:
(a) may, on its own motion, and
(b) must, at the request of:
(i) the Protective Commissioner, or
(ii) any other person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the protected person,
review its appointment of the manager of the protected person’s estate.
(2) Subsection (1) applies even if the person appointed as manager is the Protective Commissioner.
14 In Re L [2000] NSWSC 721, at [7] and [12], Young J recognised that a responsible family member will often be best placed to manage an incapable person’s affairs provided there are minimal conflicts of interest or, if there are conflicts of interest, that they are properly dealt with. Nevertheless, when a private manager is appointed, the Tribunal needs to be satisfied both of the person’s good fame and character, and of his/her ability to manage funds and understanding of what is required as a financial manager. (See also Re R [2000] NSWSC 886, at [48] to [49].) Where there is a close family relationship, consideration must also be given to whether the Protective Commissioner, being an independent statutory office with staff who have expertise and experience in managing estates, would bring a more dispassionate, neutral approach which would better meet the financial management needs of the incapable person: Holt v Protective Commissioner (1993) 31 NSWLR 227, at 242.
15 In this case, HJ’s appeal is against the Guardianship Tribunal’s appointment of IJ as HK’s financial manager.
Submissions as to issues of law
16 The submissions recited here do not refer to the parties’ submissions on issues of fact, given the Appeal Panel’s decision, referred to above, to restrict the hearing on 13 November 2008 to a consideration of the errors of law alleged by HJ.
The Appellant’s Submissions
17 HJ was critical of the conduct of the Guardianship Tribunal hearing. He said when he arrived at the Tribunal a few minutes before the hearing, he was handed a list of material that the Tribunal had received as evidence, some of which he had not previously seen, and which was not, even then, provided to him. He noted that six or seven items on the list had been submitted by IJ. At the appeal hearing, HJ identified items 27, 28 and 30 to 33 of the written material listed and considered by the Guardianship Tribunal as not having seen by him until after the decision was handed down. He said some of the information in the material listed is incorrect, suggests he is not an honest and honourable person, and is adverse to his case.
18 HJ also said the hearing was not conducted in a fair or professional manner. He had sought to rely on the written submissions he had filed prior to the Guardianship Tribunal hearing, and, “was quite taken aback when the Presiding Member took what I felt was an aggressive demeanor towards me at the hearing, and asked me what my case was.” HJ formed the view that the Presiding Member had not read the documents he had provided. When HJ drew the Presiding Member’s attention to one of the documents, the Presiding Member “responded by raising his voice to berate [IJ] by saying he was “shocked” at her behaviour, which he described as both “outrageous” and “very wrong” (transcript p 14). HJ said, “[t]his unprofessional outburst had the effect of raising the emotional temperature of the hearing room even further, to the point where everyone there seemed to be confused at what was happening.” HJ contended that “the heated tone and confrontational manner in which the hearing was handled certainly made it difficult for me to present a coherent case”.
19 HJ said “[t]wo of the three Tribunal members seemed downright hostile towards me” and he “eventually felt this hostility against me was so great that I decided not to make any further comments”. HJ said when he tried to produce a document concerning IJ’s conduct, the Presiding Member “abruptly cut me off by simply talking over the top of me, so I never managed to produce it, and it was never seen by the Tribunal”.
20 HJ said he felt very rushed, and discouraged from presenting further information. At the beginning of the hearing, the Presiding Member told him (transcript p 2) that the Tribunal had:
“an hour to review these matters. If they take more than an hour then we’ll have to adjourn and I think some of these people have come a long way.”
21 Towards the end of the hearing (transcript p 31), when asked by the Presiding Member, “before we finish [HJ] do you still maintain the same evidence as to why you think the Protective Commissioner should be appointed?”, HJ said, “I don’t think I’ve presented all the evidence”. The Presiding Member said, “No but we’ve read all the material”. Shortly after, the Presiding Member said (transcript p 33), “we’ve got the next matter to go to”.
22 HJ seeks the setting aside of the Guardianship Tribunal decision and the appointment of the Protective Commissioner as financial manager for HK. He said that he would prefer not to resume his position as HK’s financial manager but would do so in the short term if necessary.
IJ’s Submissions
23 In her written submissions, IJ denied that the Guardianship Tribunal hearing was conducted unprofessionally. She rejected HJ’s contention that everyone was confused at what was happening at the hearing, contending that it must only have been HJ. IJ contended that the Tribunal did not unjustifiably dismiss issues raised by HJ. Rather, the Tribunal was “selecting relevant issues and thus not wasting everyone’s time on those that were not”.
24 In oral submissions at the appeal hearing, IJ added that HJ had made a lot of accusations that were either not true or irrelevant. Further, she said that if HJ had wanted the documents included in the Tribunal’s list, he should have asked for them. She believes the Guardianship Tribunal hearing was conducted fairly and everybody was given a fair chance to speak.
25 IJ acknowledged that a sum had been set aside from HK’s $5 million settlement from the negligence proceedings for the purchase of a property, and that IJ was awaiting permission from the Protective Commissioner to enable a purchase to proceed. She said approximately $3 million is being managed by Perpetual Trustees, with the remainder being held in the form of a bank deposit.
HK’s Submissions
26 Mr Patch, who was instructed by the person appointed by the Appeal Panel to represent HK, referred to the decision in KA v Public Guardian & Ors [2004] NSWADTAP 25 (‘KA’), at [9], where the Appeal Panel emphasised that:
“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] HCA 81; (1985) 159 CLR 550 at 584 per Mason J; See, also Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564; Johns v Australian Securities Commission [1993] HCA 56; (1993) 178 CLR 408; Annetts v McCann [1990] HCA 57; (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] HCA 81; (1985) 159 CLR 550 per Mason J at 585.) 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 [1985] HCA 81; (1985) 159 CLR 550 per 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 that material should be disclosed. ( Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247; Re Pergamon Press Ltd [1971] CH 388; Ansell v Wells [1982] FCA 186; (1982) 43 ALR 41; Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs [2000] FCA 113 at 557.)”
27 Mr Patch submitted that as a party to the proceedings before the Guardianship Tribunal, HJ had the right to see all the relevant documents that may have affected the Tribunal’s decision. It appears that HJ was not provided with all the written material that the Tribunal took into account in making its decision, including some documents containing material adverse to the position advocated by HJ. Mr Patch submitted that the fact that HJ was denied the opportunity to consider these documents and respond to the matters in them was clearly unfair to him and amounts to procedural unfairness. This was an error of law by the Tribunal.
28 In relation to the conduct of the hearing, Mr Patch acknowledged that it is difficult to form a view from the transcript. However, the transcript suggests that the Presiding Member formed a strong view almost immediately, which may have affected HJ’s position. Mr Patch noted that the Tribunal ran out of time and cut HJ off in the presentation of his case. Essentially, the result was that an unrepresented party was not afforded a proper opportunity to present his case.
29 Mr Patch submitted that the Guardianship Tribunal decision should be set aside and the question of the appointment of a financial manager for HK should be remitted to the Tribunal. He said the rehearing could take place on the same day as the pending application for the appointment of a guardian. Mr Patch noted that HJ did not want to resume his previous role as HK’s financial manager, and this would pose practical difficulties because of past conflict between him and HK and her family. The representative appointed by the Appeal Panel to represent HK’s best interests agrees that HJ should not resume as HK’s financial manager. Mr Patch therefore requested that the Appeal Panel make an interim order appointing the Protective Commissioner as financial manager for HK pending a redetermination by the Guardianship Tribunal. Mr Patch pointed to the power of the Appeal Panel under s 118C(1) of the ADT Act to “make such orders as it thinks appropriate in the light of its decision”.
30 Mr Patch noted that IJ has approached the Protective Commissioner requesting permission for IJ to utilise HK’s funds to purchase a property for HK, where she would live with her family who would care for her. Mr Patch submitted that in view of HK’s present financial position, it was desirable for the Protective Commissioner to be appointed as interim financial manager so that if there are major decisions to be made about HK’s estate, those decisions can be made independently.
The Guardianship Tribunal’s Submissions
31 Ms Cho said that the Guardianship Tribunal differs from many other tribunals in so far as its staff investigates the matter before the hearing and presents a report to the Tribunal members. Nevertheless, the Tribunal has a responsibility to ensure the parties are afforded procedural fairness.
32 Ms Cho noted that the Queensland Guardianship Tribunal have revoked a Guardianship Order for HK following HK’s move back to NSW. An application for the appointment of a guardian for HK is presently pending and tentatively listed for mid-December 2008. If the Appeal Panel is minded to set aside the decision under appeal and remit to the Guardianship Tribunal the question of the appointment of a financial manager for HK, the rehearing of the application for the appointment of a financial manager could be heard on the same day as the application for the appointment of a guardian. A differently constituted tribunal would hear this to that which made the decision under appeal. Ms Cho noted that the effect of setting aside the Tribunal appointment of IJ as financial manager would be to re-invigorate the previous order appointing HJ as HK’s financial manager.
33 Ms Cho said she is not aware of an Appeal Panel having previously made an order for the appointment of an interim financial manager, and suggested that the Panel should seek the advice of the Protective Commissioner.
The Protective Commissioner’s Submissions
34 The Appeal Panel sought the advice of the Protective Commissioner on whether, in the event that the Panel set aside the financial management order made by the Guardianship Tribunal, it was open to the Panel to make an order for the appointment of an interim financial manager for HK. During the course of the hearing, the Panel spoke by telephone with the Protective Commissioner and her principal legal officer who advised that he could see no impediment to the Appeal Panel exercising its powers set out in s 118C(1) of the ADT Act for this purpose.
Discussion
35 The issue for determination by the Appeal Panel is whether the Guardianship Tribunal made an error of law in its determination such that its decision should be set aside. As explained above, the Panel decided in the course of the hearing on 13 November 2008 not to extend the hearing on that day to a consideration of the factual issues raised by Mr Patch in his written submissions. The Panel stated that if, following the hearing on 13 November, it decided to extend the appeal to the merits, it would reconvene the hearing at a later date allowing time for IJ to seek legal advice. Alternatively, in the event that the Panel found that the Guardianship Tribunal had made errors of law, it was also open to the Panel to set aside the Guardianship Tribunal decision and remit the matter to the Tribunal for rehearing and redetermination.
36 In essence, HJ submits that he was denied procedural fairness by the Guardianship Tribunal in that, first, he was not provided with all the evidence before the Tribunal nor given an opportunity to respond to that evidence, and, second, he was not given a proper opportunity to present his case. IJ rejects these submissions and contends that the Tribunal hearing was conducted fairly with all parties being afforded a proper opportunity to present their cases. Mr Patch, on behalf of the person appointed by the Appeal Panel to represent HK, supports HJ’s submissions and submits that the Guardianship Tribunal’s decision should be set aside for error of law and the matter remitted to the Tribunal for rehearing.
37 In relation to the first ground of appeal, the Appeal Panel agrees with Mr Patch’s submission that, as the applicant in these proceedings, HJ should have been provided with copies of the evidence received by the Tribunal, and which the Tribunal subsequently considered in making its decision, which HJ had not previously seen. The Appeal Panel accepts that some of these documents contained material which was adverse to the case presented by HJ and which he should have had an opportunity to address in making his submissions. The Guardianship Tribunal may wish to consider its procedures in relation to the period prior to a hearing. In particular, the Tribunal might consider whether sufficient emphasis is given to the need to provide the parties to a matter with all relevant documents which may be taken into account by the Tribunal in making its determination. It is essential that the parties have a proper opportunity to address material referred to in these documents in the course of making submissions to the Tribunal.
38 In relation to the second ground of appeal, the Appeal Panel has examined the transcript of the Guardianship Tribunal hearing. In the Panel’s view, those parts of the transcript identified by HJ, referred to above, tend to support HJ’s claim that he was not afforded a proper opportunity to present his case in that the Presiding Member cut him short in the presentation of his case and discouraged him from presenting all his supporting evidence.
39 The Appeal Panel is satisfied that the Guardianship Tribunal thereby denied HJ procedural fairness and made an error of law. The Panel notes the decision in KA, referred to by Mr Patch in its submissions and quoted above, which we endorse, emphasising the procedural fairness that must be afforded to parties by the Guardianship Tribunal.
40 The appropriate order in these circumstances is to set aside the Guardianship Tribunal’s decision dated 1 February 2008 and remit the matter to the Tribunal for rehearing and redetermination, allowing HJ a proper opportunity to place all relevant material before the Tribunal. The parties should, where relevant, be permitted to submit fresh evidence to the Tribunal. A rehearing of the matter will also allow IJ to obtain legal advice in relation to the factual matters raised by Mr Patch in his written submissions.
41 The Panel notes that the Guardianship Tribunal will be hearing an application for the appointment of a guardian for HK in mid-December 2008. Ms Cho indicated that it should be possible for the rehearing of the question of the appointment of a financial manager for HK to take place on the same day. In the Appeal Panel’s view, this would be appropriate since it is likely that much of the evidence will be relevant to both issues.
42 Mr Patch submitted that, relying on its power in s 118C of the ADT Act, the Appeal Panel should appoint an interim financial manager for HK pending a redetermination by the Guardianship Tribunal. Section 118C states relevantly:
(1) The Appeal Panel hearing an external appeal is to determine the appeal and make such orders as it thinks appropriate in the light of its decision.
(2) The orders that may be made by the Appeal Panel on any such appeal include, but are not limited to, any of the following:
(a) an order affirming or setting aside the decision the subject of the external appeal,
(b) an order remitting the matter to be heard and decided again by the person or body that made the decision, either with or without the hearing of further evidence, in accordance with the directions of the Appeal Panel,
(c) an order made in substitution for the decision the subject of the external appeal.
43 The Protective Commissioner’s principal legal officer advised that he could see no impediment to the Appeal Panel exercising its powers under s 118C(1) for the purpose of appointing an interim financial manager for HK. The Panel notes that s 118C(1) endows the Panel with broad powers to make such orders as it thinks appropriate in the light of its decision, and that s 118C(2) is not exclusive in identifying the orders that may be made by the Appeal Panel in determining an external appeal. In the Panel’s view, the appointment of an interim financial manager is appropriate given the size of HK’s estate following the finalisation of her negligence proceedings and given the obviously bitter dispute between HJ and IJ and her family over who should be appointed HK’s financial manager.
44 In conclusion, the decision under appeal dated 1 February 2008 is set aside and the matter is remitted to the Guardianship Tribunal to be reheard and redetermined in accordance with these Reasons for Decision. Further, the Protective Commissioner is appointed interim financial manager for HK pending redetermination by the Guardianship Tribunal.
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