Is v Protective Commissioner

[2005] NSWADTAP 8

Appeal Panel - External

CITATION:	IS v Protective Commissioner & Ors [2005] NSWADTAP 8 This decision has been amended. Please see the end of the decision for a list of the amendments.
PARTIES:	APPELLANT IS FIRST RESPONDENT Protective Commissioner SECOND RESPONDENT IT THIRD RESPONDENT Guardianship Tribunal
FILE NUMBER:	048021
HEARING DATES:	18/02/2005
SUBMISSIONS CLOSED:	02/18/2005
DATE OF DECISION:	03/17/2005
DECISION UNDER APPEAL:	Guardianship Tribunal 2004/4103
BEFORE:	Hennessy N - Magistrate (Deputy President); Leal S - Judicial Member; Mericourt B - Non Judicial Member
CATCHWORDS:	Financial management order - revocation - No error of law
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	C/25188; Matter 2002/4127
DATE OF DECISION UNDER APPEAL:	10/13/2004
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Guardianship Act 1987
CASES CITED:	Moore v Guardianship and Administration Board [1990] VR 902 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 149 K v K [2000] NSWSC 1052; S v S [2001] NSWSC 146 Re R [2000] NSWSC 886 (17 August 2000)
REPRESENTATION:	APPELLANT In person FIRST RESPONDENT No appearance SECOND RESPONDENT S Corry, solicitor THIRD RESPONDENT Guardianship Tribunal
ORDERS:	The decision of the Guardianship Tribunal made on 13 October 2004 in relation to IS is affirmed.

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,

(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.

Introduction

1 IS is a 79 year old gentleman living independently in his own home. In the recent past he was engaged in some property transactions that resulted in considerable financial loss to him. In 2002 his son, IT, applied to the Guardianship Tribunal (the Tribunal) for a financial management order. The main impetus for that application was that IS had been unsuccessful in Supreme Court proceedings relating to his property and was refusing legal representation in relation to an appeal to the Court of Appeal. One of the grounds of appeal to the Court of Appeal was that IS had not been capable of representing himself in the Supreme Court proceedings.

2 On 18 November 2002 the Tribunal made an interim financial management order and appointed his son, IT, as his financial manger. On 8 November 2002 the Tribunal made a final financial management order. IS has applied to the Tribunal on three occasions for a revocation of the financial management order. Each of those applications has been refused. The Tribunal heard the most recent application on 13 October 2004. IS has appealed to the Appeal Panel against the Tribunal’s decision. His grounds of appeal are that the doctors’ reports, which express the opinion that he has Alzheimer’s disease and dementia, are false.

3 IS has the right to appeal on a question of law, but must obtain the Appeal Panel’s permission before appealing on the merits of the Tribunal’s decision: s 118A of the Administrative Decisions Tribunal Act 1997 (ADT Act). The first issue for the Appeal Panel is whether the Tribunal made an error of law in reaching its decision.

Medical evidence

4 Initial proceedings. In order to make the initial financial management order, the Tribunal needed to be satisfied of several matters including the fact that IS is not capable of managing his financial affairs: s 25G(a) of the Guardianship Act 1987. Apart from the evidence of friends and family members, the Tribunal had two medical reports before it. Those reports had been prepared for the purpose of the Court of Appeal proceedings and expressed views about IS’s capacity to represent himself in the Supreme Court proceedings. The first was a report of Dr Wallace, a consultant psychogeriatrician, dated 21 August 2002 which concluded that IS “suffers from dementia of probable Alzheimer’s type with a mild to moderate impairment of cognition. . . (which) partially impairs his competency.” Dr Wallace concluded that “the current cognitive functioning would account for the poor performance seen in court previously.” The second report was from Dr Blows, a clinical psychologist, dated 18 September. Dr Blows concluded that IS has a “well marked cognitive and brain disorder.” He said that “he now has a serious lack of judgment and loss of power of higher level functioning (and) a somewhat severe memory loss.”

5 When IS applied to revoke the financial management order on 8 September 2003, the Tribunal also had before it a report from a psychiatrist Dr Peisah dated 20 January 2002. Dr Peisah could find no evidence of a dementing illness and “no evidence that at the time of his hearing in December 2001 that he suffered from a cognitive impairment which affected his abilities to understand the nature of the proceedings.” In a report of 30 October 2002, Dr Bennett said of IS that “he does not currently suffer from Alzheimers disease” and that his performance in the 2001 court proceedings was in the normal range of behaviour. Dr Crosson, a general practitioner, provided a report dated 1 September 2003, that is after the Supreme Court proceedings. He states that the report of Mr Blows is, in his opinion, very accurate and that IS “suffers from an unspecified personality disorder and some cognitive impairment, which does not seem to stop him managing his day to day affairs, however it is probably not in his best interests that important legal and/or financial matters are left solely for him to deal with.”

Tribunal’s decision of 13 October 2004.

6 On 13 October 2004 the Tribunal heard IS’s third application for revocation of the financial management order. On that occasion, the Tribunal had access to all the previous medical reports as well as two further documents. The first was a medical certificate from Dr Jain, a general practitioner, dated 26 July 2004 which merely stated that IS did not have a cognitive impairment. The second was a short report from Dr Ravimohan dated 26 July 2004, another general practitioner who had seen IS on one occasion. He said “there was no evidence of any significant cognitive impairment.” IS went to see Dr Ivan Bakich of Proactive Psychological Services Pty Ltd so that an assessment could be conducted. The assessment was not completed because IS declined to pay for the report.

7 Under s 25P, the Tribunal may only revoke a financial management order if either:

(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).

8 The Tribunal concluded that there was “insufficient evidence before it that (IS) presently had capacity to manage his own affairs and the Tribunal was of the view that the two recently obtained brief medical certificates from Dr Jain and Dr Ravimohan, both General Practitioners, inadequate for the purpose of supporting a revocation of a financial management order. . .” Furthermore, the Tribunal was not satisfied, given previous financial dealings in which he has been involved, that it was in his best interests to revoke the financial management order.

IS’s submissions

9 When the Appeal Panel asked IS to point to the legal error he believed the Tribunal had made, he said that the information given to the Tribunal was false. We understand that he was referring to information including the professional psychological reports. He said that he is capable of managing his financial affairs and the fact that he found his way to the Appeal Panel hearing was, in itself, evidence that he does not have dementia.

2nd respondent’s submission

10 IS’s son, IT, submitted that when the Tribunal made its decision on 13 October 2004 not to revoke the financial management order, it had before it all the relevant medical evidence. According to IT, the Tribunal based its findings on that material as well as the evidence from IS. The Tribunal gave IS the opportunity to have the proceedings adjourned so that he could obtain further medical evidence but he declined that invitation. IT also pointed out that the reports of Dr Bennett and Dr Peisah were obtained after the reports of Dr Wallace and Dr Blows were served on the respondents in the Supreme Court proceedings. Those reports all relate to the question of whether IS had been capable of representing himself in the proceedings.

11 IT submitted that IS had not identified any error of law in the Notice of Appeal or in oral submissions. IT also submitted that no grounds had been identified which would justify the Appeal Panel granting leave to hear the merits of the decision.

Appeal Panel’s reasoning

12 The Tribunal made two findings of fact in its 13 October 2004 decision. The first was that IS was not capable of managing his affairs. The second was that it was not in IS’s best interests to revoke the order. One basis on which IS could have challenged these findings was that the evidence on which these findings were based has no, or little, probative weight. In Moore v Guardianship and Administration Board [1990] VR 902 the Supreme Court of Victoria held at 918 that even if a Tribunal is not bound by the rules of evidence it is not entitled to act on material of little or no probative weight, especially where it has significant prejudicial effect. The Tribunal will have made an error of law if its findings are “perverse” or “contrary to the overwhelming weight of the evidence”: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 149. This is sometimes called the “no evidence” rule and is regarded as an element of natural justice or procedural fairness.

13 There was probative medical evidence supporting a finding that IS is not capable of managing his affairs and that it is not in his interests to revoke the financial management order. Although there was also some evidence to support IS’s view that he does not have a dementing illness, or at least that he did not have one in 2002, the Tribunal’s findings of fact were not “perverse” or “contrary to the overwhelming weight of the evidence.” We also note that the Tribunal gave IS the opportunity to obtain up-to-date medical evidence but that he declined that invitation. In those circumstances, we can find no error of law.

Leave to appeal on other grounds

14 Having concluded that no error of law has been identified, we must now decide whether to grant leave to hear the appeal on any other ground, namely the merits of the decision. (See s 118B(1)(b) of the ADT Act.) 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.

15 IS’s main point was that the Tribunal erred in concluding that he had a disability which meant that he was totally or partially incapable of managing his person. IS disputed that he had Alzheimer’s disease or dementia and submitted that he was capable of managing his domestic and financial affairs. Having examined all the medical and other evidence that was before the Tribunal, we are satisfied that the Tribunal’s findings were based on logically probative evidence and that it applied the correct legal tests. In those circumstances it is not appropriate for the Appeal Panel to grant leave to hear the merits of the decisions.

Orders

16 The decision of the Guardianship Tribunal made on 13 October 2004 in relation to IS is affirmed.

11/04/2005 - To delete last sentence - Paragraph(s) 15