Is v Public Guardian

[2003] NSWADTAP 66

Appeal Panel - External

CITATION:	IS v Public Guardian & Ors [2003] NSWADTAP 66
PARTIES:	APPELLANT IS FIRST RESPONDENT Public Guardian SECOND RESPONDENT Protective Commissioner THIRD RESPONDENT IT FOURTH RESPONDENT Guardianship Tribunal
FILE NUMBER:	038012
HEARING DATES:	09/12/03
SUBMISSIONS CLOSED:	12/09/2003
DATE OF DECISION:	12/12/2003
DECISION UNDER APPEAL:	Guardianship Tribunal 2003/3625
BEFORE:	Hennessy N - Magistrate (Acting President); Britton A - Judicial Member; Houlahan L - Member
CATCHWORDS:	No error of law
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	C/25188
DATE OF DECISION UNDER APPEAL:	09/08/2003
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Administrative Decisions Tribunal Rules (Transitional) Regulation 1998 Guardianship Act 1987
CASES CITED:	K v K [2000] NSWSC 1052 Re R [2000] NSWSC 886 S v S [2001] NSWSC 146
REPRESENTATION:	APPELLANT J Coates, representative FIRST RESPONDENT No appearance SECOND RESPONDENT No appearance THIRD RESPONDENT S Corry, solicitor FOURTH RESPONDENT E Cho, legal officer
ORDERS:	1 The decisions of the Tribunal are 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 77 year old man who has appealed against two decisions of the Guardianship Tribunal (the Tribunal). The first decision was an order for continuing guardianship for the purposes of making decisions about accommodation, health care, medical and dental consent for a period of 4 months from 8 September 2003. The Tribunal appointed the Public Guardian as IS’s guardian. The Tribunal told the Appeal Panel that the review of the guardianship order is listed for hearing on 12 January 2004. The Tribunal’s second decision was to confirm the financial management order made on 18 November 2002 appointing IS’s son as his financial manager subject to the direction and conditions of the Protective Commissioner.

Jurisdiction and powers of the Appeal Panel

2 The Appeal Panel’s jurisdiction to hear external appeals comes from s 67A of the Guardianship Act 1987 (the 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 grounds. (Section 118B(1) of the ADT Act.) 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)

Parties and representation

3 The parties to proceedings before an Appeal Panel include the appellant and anyone else who was a party to the proceedings before the 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”.) While the Protective Commissioner is also a party to the appeal, he chose not to play any role in the proceedings.

4 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.

5 The Appeal Panel appointed The Aged Care Rights Service (TARS) to represent IS in these proceedings pursuant to s 71(4A) of the Administrative Decisions Tribunal Act 1997 (ADT Act.) Mr Corry represented the third respondent, IS’s son.

Grounds of Appeal and Reply

6 In his Notice of Appeal, IS asserts that:

(1) He does not have Alzheimer’s disease or dementia and is still able to manage his domestic and financial affairs.

(2) It is not in his best interests to have his son or anyone else appointed as financial manager or guardian.

7 Ms Coates, representing IS, indicated that IS was requesting that the Appeal Panel set aside the guardianship order and the financial management order. In respect of the guardianship order she indicated that a property transaction that had been in issue before the Tribunal, had been finalised and there was no apparent need for the accommodation order to continue. Ms Coates visited IS in his new residence at Emu Plains and indicated that he appeared to be well settled and living in close proximity to his son.

8 Mr Corry submitted that no error of law had been identified in the Notice of Appeal or in oral submissions. Consistent with the approach taken by the Tribunal in previous decisions, Mr Corry submitted that no grounds had been identified which would justify the Appeal Panel granting leave to hear the merits of the decision.

Legal error

9 Nothing in the Notice of Appeal, or in oral submissions identifies a question of law. Having considered all the submissions and having read the Tribunal’s decision together with the material before the Tribunal, we cannot identify any substantive or procedural error of law.

Leave to appeal on other grounds

10 Having concluded that there is no error of law, 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 Guardianship 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.
11 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. There is no suggestion that the Tribunal went about its fact finding process in an unorthodox manner or in a way which was likely to produce an unfair result. In those circumstances it is not appropriate for the Appeal Panel to grant leave to hear the merits of the decisions. We note that the Tribunal will be reviewing the guardianship order in January 2004 and any material change of circumstance can be taken into account at that time.

Orders

1. The decisions of the Tribunal are affirmed.

I