IS v Public Guardian & Ors

[2009] NSWADTAP 24

Appeal Panel - External

CITATION:

IS v Public Guardian & Ors [2009] NSWADTAP 24

PARTIES:

APPELLANT
IS

FIRST RESPONDENT
Public Guardian

SECOND REPSONDENT
IT

THIRD RESPONDENT
IU

FOURTH RESPONDENT
IV

FIFTH RESPONDENT
IW

DECISON MAKER
Guardianship Tribunal

FILE NUMBER:

088012

HEARING DATES:

28 November 2008

SUBMISSIONS CLOSED:

28 November 2008

 
DATE OF DECISION: 

22 April 2009

BEFORE:

Britton A - Deputy President; Higgins S - Judicial Member; Bolt M - Non-Judicial Member

CATCHWORDS:

power of attorney - review of leave to appeal on other grounds - procedural fairness

FILE NUMBER UNDER APPEAL:

C/35545

DATE OF DECISION UNDER APPEAL:

09/17/2008

LEGISLATION CITED:

Administrative Decisions Tribunal Act 1997
Guardianship Act 1987
Powers of Attorney Act 2003

CASES CITED:

Bar-Mordecai v Rotman [2000] NSWCA 123
Carew v Protective Commissioner and Ors [2005] NSWADTAP 13
GM v Protective Commissioner & Ors [2003] NSWADTAP 59
JT and Anor v Protective Commissioner & Ors [2004] NSWADTAP 13
KA v Public Guardian & Ors [2004] NSWADTAP 25
KW & Ors v KV & Ors (No.2) [2004] NSWADTAP 48
Li v Minister for Immigration and Multicultural Affairs [2000] FCA 19; (2000) 96 FCR 125
Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13
TP v TR & ors (No 2) [2006] NSWADTAP 12

REPRESENTATION:

APPLICANT
IS' husband, Agent

FIRST RESPONDENT
No appearance

SECOND RESPONDENT
S Newell, solicitor

THIRD RESPONDENT
In person

FOURTH RESPONDENT
No appearance

Decision maker
E Cho, solicitor

ORDERS:

1.The decision to revoke IS’ appointment as enduring guardian made by the Guardianship Tribunal on 4 July 2008 is affirmed
2. The guardianship order in relation to IT made by the Guardianship Tribunal on 4 July 2008 is affirmed
3. The order of the Guardianship Tribunal made under the Powers of Attorney Act 2003 on 4 July 2008 is set aside
4. The power of attorney decision is remitted to the Tribunal as originally or similarly constituted for redetermination in accordance with these reasons.

1 The appellant, who we will refer to in these reasons by the pseudonym ‘IS’, appeals against three decisions made by the Guardianship Tribunal. These are, the decisions to revoke her appointment as her mother’s enduring guardian, to appoint the Public Guardian as her mother’s guardian, and not disturb the enduring power of attorney (‘POA’) executed by her mother in February 2006.

2 The appellant’s mother, the subject person of this appeal, is 80 years of age and suffers from dementia. She is a permanent resident in a residential aged care facility. In these reasons she will be referred to by the pseudonym ‘IT’.

3 All references in these reasons to ‘the Tribunal’ are to the NSW Guardianship Tribunal.

Representation

4 Solicitor, Mr Stephen Newell of the Aged Care Rights Service was appointed under s 71(4) of the Administrative Decisions Tribunal Act 1997 to represent IT in these proceedings.

5 In these proceedings, IS was represented by her husband acting in the role of agent.

6 IS’ attorneys, IU and IV, respectively, the third and fourth respondents, appeared in person. Both opposed the appeal.

7 The fifth respondent, IW, is the brother of the appellant and IU. He lives overseas and did not attend the hearing into the appeal. He opposed the appeal and provided the Panel with brief written submissions.

8 The Guardianship Tribunal participated in a limited capacity consistent with the principles outlined by the High Court in R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 at pp 35, 36.

9 The Public Guardian, the first respondent, did not participate in these proceedings.

Background

10 Since March 2006 the appellant’s mother has been living in an aged care residential facility in Sydney (the Village). Born in Sri Lanka, IT migrated to Australia in 1996.

11 In a hearing conducted on 4 July 2008 the Tribunal determined three separate applications:

An application by the appellant seeking a review of the enduring power of attorney executed in February 2006 appointing her sister and brother-in-law, IU and IV, as her mother’s attorneys. That application was made in January 2007. While not entirely clear it would appear that an administrative oversight caused the listing of that application to be delayed.

An application, also made by the appellant, for review of her appointment as her mother’s enduring guardian. That appointment was made in November 2006. According to the appellant, the reason for making that application was so her appointment could be confirmed. She believed that without this ‘order’ her sister would continue to obstruct her in the performance of her role as guardian.

An application made by IU for a guardianship order. IU sought appointment as her mother’s guardian. In her application to the Tribunal IU stated that the ‘enduring guardianship held by [the appellant] is not working effectively as she does not appear to have my mother’s best interest at heart, and fails to understand my mother’s condition’.

12 The Tribunal decided to:

Review the power of attorney but make no orders

Revoke the appellant’s appointment as her mother’s enduring guardian

Make a guardianship appointing the Public Guardian as IT’s guardian for a period of 12 months, with decision-making authority in respect of accommodation and health care and power to consent to medical and dental treatment

13 Written reasons were given for those decisions.

14 In the proceedings before the Tribunal, IT had been represented by a solicitor appointed by the Tribunal.

Jurisdiction

15 It is not in issue that the Appeal Panel has power to hear appeals from the three decisions, the subject of this appeal. Appeals from these decisions are described as ‘external appeals’ (s 118A of the Administrative Decisions Tribunal Act).

16 Section 118 B of the Administrative Decisions Tribunal Act provides that an external appeal may be made, as of right, on any question of law and with the leave of the Appeal Panel, on any other ground.

Grounds of Appeal

17 In a Notice of Appeal filed on 4 September 2008 the appellant set out six main grounds of appeal and attached lengthy submissions in support. At hearing the appellant advised that those submissions were to be disregarded and that she now relied on submissions filed on 29 October 2008. In these reasons any reference to the appellant’s submissions is to the latter set.

18 The appellant’s written submissions run to some 37 pages and detail numerous alleged errors and shortcomings on the part of the Tribunal. In these Reasons we have not addressed those arguments that are ‘manifestly untenable’, adopting the approach endorsed by the Court of Appeal in Bar-Mordecai v Rotman [2000] NSWCA 123 at [212]:

Many of the frequently repeated submissions were manifestly untenable, and many were manifestly misconceived or lacking in any substance. To address every one of the matters purported to be raised in the submissions of the appellant (written and oral) would be well nigh impossible. It is also unnecessary, because while we have considered all that the appellant put in his submissions there is no need to discuss arguments which are hopeless or inconsequential to the result in the proceedings. In accord with the approach explained in Australian Breeders Co-operative Society Ltd v Jones (1997) 150 ALR 488 at 503 and Amadio Pty Ltd v Henderson (1998) 81 FLR 149 at 175, we have confined these reasons to those issues with which we understand the appellant has principally concerned himself and which we see as of some significance or consequence.

19 The principal grounds of appeal may conveniently be dealt with under the following headings:

(a) Failure to afford procedural fairness, in that:

(i) The Tribunal failed to have regard to her written submissions

(ii) The Tribunal failed to give her a reasonable opportunity to make oral submissions

(iii) The Tribunal was incompetent and ill-prepared for the proceedings

(iv) The Tribunal was biased against the appellant

(b) Failure to properly carry out the Tribunal’s role as trier of fact by testing the evidence given by the appellant’s sister and brother-in-law that they had not abused the POA.

Failure to afford procedural fairness

20 A long line of Appeal Panel decisions has held that the Guardianship Tribunal is required to afford procedural fairness to all parties. (See for example GM v Protective Commissioner & Ors [2003] NSWADTAP 59; KA v Public Guardian & Ors [2004] NSWADTAP 25; KV v Protective & Ors; KW & Ors v KV & Ors (No.2) [2004] NSWADTAP 48; Carew v Protective Commissioner and Ors [2005] NSWADTAP 13).

21 In short the rules of procedural fairness require that parties to applications before the Tribunal receive a fair hearing from an impartial decision-maker. Two elements of procedural fairness are relevant to this appeal: the hearing rule and the rule against bias.

22 The content of the hearing rule in the context of proceedings before the Tribunal has been examined by differently constituted Appeal Panels in a number of decisions including, KV v Protective & Ors; KW & Ors v KV & Ors (No.2) [2004] NSWADTAP 48; IZ v JC, JB, JA [2009] NSWADTAP 4; Carew v Protective Commissioner and Ors [2005] NSWADTAP 13; TP v TR & ors (No 2) [2006] NSWADTAP 12. Those decisions held that that as a minimum the hearing rule requires the Tribunal to disclose to all parties with an interest in the proceedings, the substance of any adverse or prejudicial information and give them a reasonable opportunity to respond.

23 The rule against bias requires that a decision-maker must be, and be seen to be, impartial. In this matter actual bias has been alleged. Actual bias will be established where a decision-maker is shown to have been committed to a particular conclusion and had a closed mind to the issues raised: Minister for Immigration & Multicultural Affairs v JiaLegeng (2001) 205 CLR 507. Drummond J in Li v Minister for Immigration and Multicultural Affairs [2000] FCA 19; (2000) 96 FCR 125 (at pp133-134), usefully summarised the principles in regard to actual bias as follows:

(a) Actual bias exists where the decision-maker has prejudged the case against the applicant, or has acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant.

(b) The emphasis is upon the state of mind which affects the decision-making rather than elements of the process of decision-making taken in isolation.

(c) Proof of an intentional state of mind adverse to the party is not the only way of proving actual bias. Such bias may be subconscious, provided it is real.

(d) It is not sufficient proof of actual bias to show that the decision-maker has expressed views adverse to the party’s position at an early stage of the proceedings unless there is also proof that those views were incapable of being changed in the course of the proceedings. …

24 The onus of demonstrating actual bias lies with the appellant and is a heavy onus to discharge (per French J in Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87 at pp 106 – 107, cited with approval by Gleeson CJ and Gummow J in Minister for Immigration & Multicultural Affairs v JiaLegeng.

1. Breach of hearing rule

A. Review of power of attorney

25 In support of her contention that the Tribunal failed to give her a reasonable opportunity to put her case and give proper regard to her case, the appellant alleges that the Tribunal:

Determined an issue that she had not raised, namely the making of the power of attorney

Failed to address her evidence of an alleged fraud on Centrelink perpetrated by her sister and brother-in-law

‘Glossed over’ an alleged misuse of a Medicare card

Failed to properly address an allegation of misappropriation

Failed to have proper regard to her stated reasons for making the power of attorney application (‘the POA application’), namely, to give effect to her mother’s wish that both daughters be involved in her care

26 Before considering this submission it is necessary to examine the powers of the Tribunal to review a power of attorney and the Tribunal’s decision.

27 The Tribunal’s jurisdiction to hear and determine the appellant’s application comes from ss 36(1) and (2) of the Powers of Attorney Act 2003:

(1) A review tribunal may, on the application of an interested person, decide to review the making or the operation and effect of a reviewable power of attorney or not to carry out such a review.

(2) As a consequence of reviewing the making or operation and effect of a reviewable power of attorney, a review tribunal may decide whether or not to make an order under this section.

28 The Guardianship Tribunal is a ‘review tribunal’ for the purpose of Part 5 of the Powers of Attorney Act: s 26.

29 Section 36(1) gives the Tribunal the power to do three things:

(1) to review the making of a reviewable power of attorney

(2) to review the operation and effect of a reviewable power of attorney

(3) to decline to do either (1) or (2).

30 The Tribunal, in its Reasons for Decision (at p 2), stated that the appellant’s application to review the POA was made on two bases: capacity and the appellant’s ‘concerns about the manner in which the attorneys had acted since their appointment’.

31 After examining in some detail the medical evidence about IT’s capacity to make an enduring power of attorney the Tribunal concluded (Reasons for Decision at p 5), ‘[G]iven the lack of evidence about [IT’s] capacity to execute the enduring power of attorney [it is appropriate] …pursuant to s 36(2) of the POA Act, not to make an order concerning the making of the enduring power of attorney on 27 February 2006’ [emphasis added]. The Tribunal went on to review the operation and effect of the power of attorney and decided to make no orders.

(i) Making of power of attorney

32 In her written submissions the appellant stated, ‘Nowhere in requesting a review did I state that I want the Enduring Power of Attorney reviewed because I believed that [my mother] did not have the capacity to execute the power of attorney’. She went on to criticise the Tribunal for ‘conducting a hearing having absolutely no relation to the issues I wanted heard…It would therefore appear that the members of the Tribunal had gone into the hearing without even having read my application’ (appellant’s submissions, p 5).

33 While clear from the ‘Application to Review an Enduring Power of Attorney’ that the appellant’s main interest was the operation and effect of the POA, in the course of the hearing the appellant also asked the Tribunal to review its making. This is made clear by the exchange between the appellant and the Presiding Member (Transcript of Proceedings, 4/7/08, pp 21, 22).

34 The transcript also reveals that the appellant told the Tribunal that when her mother executed the power of attorney she lacked capacity. She provided detailed evidence in support of that contention (Transcript of Proceedings, 4/7/08, pp 33 to 36). She told the Tribunal that at the relevant time her mother ‘was absolutely insane, I have photographs to show how insane she looked and she was just forced into doing that [execute the POA]’: (Transcript of Proceedings, 4/7/08, p 29).

35 Even if the appellant had not raised capacity in the hearing, it was open to the Tribunal to consider the issue. Once an application for review has been made by an ‘interested person’, it is a matter for the Tribunal to review, or not review the making of, and/or operation and effect of, the POA. The issues identified in the initiating application do not circumscribe the Tribunal’s powers. Accordingly the Tribunal did not, as the appellant’s submissions suggest, exceed its powers by reviewing the making of the power of attorney. Indeed given that the appellant had provided evidence that her mother was ‘insane’ when she executed the power of attorney, it is difficult to see how this issue could have been ignored.

36 The Tribunal, in our view, did not err in deciding to review the making of the POA. Nor did its consideration of the issue indicate that the Tribunal had been inattentive to the appellant’s arguments.

(ii) Failure to address reasons for making the application

37 The essence of the appellant’s argument is that the Tribunal did not give her a reasonable opportunity to put her case and neither read her submissions or listened to what she had to say. She argues that the Tribunal did not have regard to, or proper regard to, her allegations about the interception of her mother’s Medicare card, the attorneys’ ‘possible fraud’ on Centrelink and the misappropriation of her mother’s funds. Furthermore, she contends that the Tribunal failed to have regard to the reason she made the POA application.

38 The Tribunal identified the appellant’s key concerns in the following terms (Reasons for Decision, pp 5, 6):

That the attorneys have abused their authority and have blocked [the appellant’s] actions as [IT’s] enduring guardian in seeking to obtain specialist attention for [IT’s] medical conditions.

That the attorneys have acted inappropriately in allowing [IT] to continue to receive a widow’s allowance through Centrelink. In [IS’s] view, her mother may be liable for a large debt owed to the Australian government.

That [the appellant] wants both of her daughters to be equally involved in the management of her finances

39 After reviewing the evidence the Tribunal concluded (Reasons for Decision, pp 9, 10):

There was no evidence that supported the allegation that [IT’s] funds had been mismanaged, that her savings had been dissipated or that [the attorney’s] finances were intermingled with [IT’s] finances. Whilst the Tribunal paid careful regard to [the appellant’s] evidence that her mother has indicated to her that [she] wishes to have both daughters equally involved with her financial affairs, the Tribunal ultimately decided that the arrangements put in place in February 2006 which, on the evidence, largely reflected the informal arrangements in place prior to that date, are working in [IT’s] best interests and there is no reason for those arrangements to be changed. For these reasons, the Tribunal decided that no order should be made under section 36(3) of the Powers of Attorney Act and therefore dismissed the application for review of the enduring power of attorney.

40 Alleged fraud on Centrelink The appellant contends that the Tribunal failed to have regard to her evidence about the ‘alleged possible fraud’ on Centrelink, which she contended the attorneys were implicated in. The appellant complained to the Tribunal that her mother held no entitlement to a Widow’s Pension, which she had been receiving since 2000. From the appellant’s point of view, this evidence was apparently relevant as tending to show the unfitness of her sister and brother-in-law as attorneys.

41 In its Reason for Decision, the Tribunal set out the appellant’s concerns and concluded that ‘the attorneys have not acted in any way to disadvantage [IT]’. The Tribunal stated (at p 8):

The Tribunal was not satisfied that the concerns raised by [the appellant] about her mother’s entitlement to the widow’s allowance were substantiated. [IT] applied for and was granted the widow’s allowance through Centrelink many years before she appointed her daughter and son in law as her attorneys. [IW] gave evidence that he had participated in this process and was satisfied that his mother had applied for and accepted payment of the widow’s allowance in an open and transparent way. Once [the attorneys] became aware of their sister’s concerns, they acted appropriately in reviewing the documentation they had concerning their mother’s entitlement to the allowance, and satisfied themselves as to the appropriateness of the payments. Whilst [the appellant] provided evidence to the Tribunal of what appeared to be a recent printout from a Centrelink website concerning the current rules and regulations concerning the payment of a widow’s allowance, no evidence was provided about the basis of that payment in 2001 when [IT] apparently applied and was granted the allowance. The Tribunal was therefore not satisfied that the attorneys have acted in any way to disadvantage [IT] in this respect.

42 The allegation made by the appellant was of serious misconduct or, at the least, serious negligence on the part of the attorneys. The basis of the appellant’s allegation was simply that she had read material on the Centrelink website and formed certain conclusions of law. She advanced no other evidence.

43 The Tribunal has no statutory duty to investigate an application. While it may, in the exercise of its jurisdiction, call for evidence to be produced or given, it was not required to follow up all allegations made to it by applicants or, indeed, respondents.

44 There is nothing before us to indicate that the Tribunal did not give the appellant a reasonable opportunity to put her arguments about the Centrelink issue or effectively ignored her submissions. It was open to the Tribunal on the evidence before it to disregard this complaint. It had no reasoned legal argument before it and the presumption of regularity suggests that Centrelink, in all probability, duly assessed IT’s eligibility for the pension and came to the conclusion that she was eligible. While not expressly addressed in the Reasons for Decision, it is to be noted that when the ‘alleged possible fraud’ was committed, there is no evidence to suggest that IT lacked capacity and nor has this been suggested.

45 Interception of Medicare card The appellant alleged to the Tribunal that on her sister’s instruction, the staff of the Village had ‘intercepted’ her mother’s Medicare card, preventing her (the appellant) from using the card to obtain alternative medical treatment for her mother. She claims that as a consequence, she was effectively prevented from fulfilling her duties as her mother’s guardian. In this appeal she complains that the Tribunal failed to take this matter into account as it ought to have done. She complained during the appeal that the Tribunal ‘glossed over’ her allegation. She claimed that ‘This is clear evidence that my sister used the staff [at the Village] using guile to obstruct my mother from receiving proper medical care’.

46 The relevance of this evidence, as we understand it, is that, if accepted, it may tend to show that IU, the appellant’s sister, was an unfit attorney and it was not in her mother’s best interest that the power of attorney remain on foot.

47 The appellant submitted that this was ‘a crucial piece of evidence that the members of the Tribunal chose to dismiss and clearly once again shows bias against me’.

48 The Tribunal had little evidence with which to work on this point. It would not be surprising if staff of the Village caring for a patient suffering from dementia collected his or her mail. It is self-evident that the staff, if they collected IT’s Medicare card at all, would have a duty to hold it for a person authorised to use it. By the appellant’s own admission at the time of the alleged interception she had not told either the Village or the attorneys that she held an appointment as her mother’s enduring guardian.

49 Without more evidence that conduct cannot be characterised as an ‘interception’, nor is it ‘clear evidence’ of misconduct on the part of the appellant’s sister let alone of any conspiracy between the appellant’s sister and staff of the Village. The interpretation placed on it by the appellant is probably sincere but, unfortunately for her argument, has little objective substance.

50 However, in any event it could not be said that the Tribunal failed to give the appellant the opportunity to make submissions or provide evidence on this point or to have proper regard to her evidence and argument.

51 Misappropriation of funds In submissions, the appellant also stated that the attorneys may have misappropriated funds. She claimed that about $50,000 was missing from her mother’s accounts. She alleged that, ‘What members of the Tribunal have done is omit this important disclosure and rather they have fabricated statements and attributed them to my brother and sister to make it look like all is well. This is dishonest.’

52 As the transcript reveals a significant proportion of the hearing was devoted to the misappropriation issue. (See Transcript of Proceedings, 4/7/08, pp 11 to 28.) The Tribunal invited the appellant to particularise the allegation. The appellant told the Tribunal that in 2004 her mother informed her that she held about $85,000 in various bank accounts and she suspected that these funds had disappeared, although she conceded that she did not know how much was now held in those accounts as the attorneys had refused to disclose this information. Her sister gave evidence that her mother now had about $76,000 in various accounts and in addition a bond held by the Residential Aged Care Facility of $28,000.

53 In its Reason for Decision after detailing the evidence about the ‘missing finds’, the Tribunal said (pp 8, 9):

The Tribunal accepted that [the appellant] feels a sense of frustration about not being involved in decision-making about her mother's financial affairs. [The attorneys] acknowledged that they have not shared information about their mother’s finances with [the appellant] and this decision appears to be based on a number of factors, including the breakdown in the relationship between [the appellant] and [IU] as well as a desire to maintain [IT’s] privacy in relation to her financial affairs. This is a justifiable approach for attorneys to take, even though it may cause concern about a lack of transparency felt by other family members.

Nevertheless, [the appellant] has also made a number of allegations about the management of her mother’s affairs by the attorneys. The Tribunal considered each of these matters and, taking into account all of the evidence came to the view that there was no evidence to suggest that the attorneys were operating in any way other than in [IT’s] best interests. Whilst [the attorneys] did not produce written evidence concerning [IT’s] current financial affairs, the Tribunal accepted their evidence about the status of [IT’s] savings, her income and outgoings. There was no evidence to suggest that her savings had been mismanaged. Rather, the evidence suggested that [IT’s] savings were being well managed and that her ongoing care needs were being met out of these savings.

54 The material before the Panel reveals that the appellant was given a reasonable opportunity to provide evidence and present argument in support of the misappropriation allegation and the Tribunal took this account.

55 While not expressed in these terms, it would appear that the real issue raised by the appellant is that the Tribunal accepted her sister’s account without any documentary evidence to corroborate her claim. We will return to consider this issue.

56 Failure to have regard to the reasons the appellant had made the POA application The appellant contends that the Tribunal failed to give proper regard to the reason she sought review of the POA, namely to give effect to her mother’s wish that both daughters be involved in her care and to ensure that her mother’s best interests were met.

57 The transcript reveals that the appellant gave detailed evidence about her mother’s purported wish that both daughters be ‘equally involved’ with the management of her financial affairs (see for example, Transcript of Proceedings, 4/7/08, pp 6, 22 and 23). The Reasons for Decision indicate that while the Tribunal had regard to that evidence, it did not consider it to be determinative. It stated (at pp 8, 9):

…Whilst the Tribunal paid careful regard to [the appellant’s] evidence that her mother has indicated to her that [she] wishes to have both daughters equally involved with her financial affairs, the Tribunal ultimately decided that the arrangements put in place in February 2006 which, on the evidence, largely reflected the informal arrangements in place prior to that date, are working in [IT’s] best interests and there is no reason for those arrangements to be changed. …

58 We are not persuaded that the Tribunal failed to afford procedural fairness in respect of its consideration of this issue.

B. Review of appellant’s appointment as enduring guardian

59 The appellant contends that the Tribunal failed to have proper regard to the reason she applied for review of her appointment as enduring guardian, namely her ‘inability to fulfil [her] role due to obstructions placed by my sister who is my mother’s power of attorney’.

60 She contends that the Tribunal failed to read and understand her application and had the members done so they would have realised that she had applied ‘to have the obstructions placed on me performing my duties by my sister removed’ and not merely to ‘confirm her role as enduring guardian’.

61 Before dealing with this argument it is necessary to set out the statutory provisions relevant to the review of the appointment of an enduring guardian.

62 The Tribunal’s power on review is contained in Part 2 of the Guardianship Act 1987. It provides:

6K Action on review

(1) On reviewing the appointment of an enduring guardian, the Tribunal may:

(a) revoke the appointment, or

(b) confirm the appointment, with or without varying the functions of the enduring guardian under the appointment.

(2) The Tribunal must not revoke the appointment of an enduring guardian unless:

(a) the enduring guardian requested the revocation, or

(b) the Tribunal is satisfied that it is in the best interests of the appointor that the appointment be revoked.

63 The Tribunal correctly noted that the appellant’s appointment as enduring guardian could not be revoked unless, it was satisfied that it was in IT’s best interests (Reasons for Decision, p 9). The Tribunal gave these reasons for revoking the appointment (p 9):

… [The appellant] did not inform either her family members or staff of the nursing home of her appointment as enduring guardian in November 2006. [The appellant] clearly has concerns that her mother has been prescribed inappropriate medications but was unable, despite her appointment as her mother's enduring guardian, to take steps to ensure that her concerns were addressed. [The appellant] gave evidence that she felt blocked in her ability to do so and the difficulties in her relationship with her sister may have played some part in this. However, a guardian needs to be able to work effectively to overcome such matters in order to act in a person’s best interests. A guardian also needs to be able to communicate and work effectively with the health professionals and other significant people involved in that person’s life.

The evidence satisfied the Tribunal that [the appellant] had not been able to effectively carry out the role of [IT’s] enduring guardian and decided that it was in [IT’s] best interests that her appointment as enduring guardian should be revoked.

64 The appellant’s argument is misconceived. Like an application for review of a power of attorney the parameters of a review of the appointment of an enduring are not prescribed by the initiating application. Once seized of an application for review it is a matter for the Tribunal what matters to take into account, guided of course by the objects of the Guardianship Act. In our view the Tribunal properly identified the workability of the guardianship arrangements to be relevant to an assessment of IT’s best interests.

65 A careful reading of the transcript shows that the Tribunal afforded the appellant an ample opportunity to provide evidence and to make submissions. Rather than, as the appellant alleges, the Tribunal ignoring her arguments or ‘glossing over’ matters, it shows that the Tribunal made a sustained and conscientious effort to focus on the principal issues for its determination and to extract from her evidence relevant to the final determination.

66 There is nothing in the transcript to indicate that the appellant’s submissions were cut short. Towards the end of the hearing, for example, the lawyer representing IT, outlined her view that given the level of conflict between IT’s daughters there would be merit in trialling the appointment of the Public Guardian. The presiding member invited all parties to comment on that proposal and make any final comments or submissions. The appellant took that opportunity and made further lengthy submissions, as did the other parties.

67 It is also relevant to note that at the commencement of the hearing the appellant made clear that she wished to relinquish the appointment and had in effect abandoned her request that the Tribunal ‘remove the obstructions placed by her sister’ (Transcript of Proceedings, 4/7/08, p 4):

PRESIDING MEMBER: Before we do start, can I just double-check. [appellant], are you still seeking - I just want to confirm that you are still seeking to have the Enduring Power of Attorney reviewed. Is that correct?

APPELLANT: No, I’m quite willing to give it up for a Guardianship Order - what do you call it, a Public Guardian, sorry. I would rather the Public Guardian take over rather than me or my sister have it because our views are so polarised on what we think is best for my mother when it comes to medical care and what have you.

PRESIDING MEMBER: So you would be - if an order were to be made for Guardianship you would be suggesting that the Public Guardian be appointed.

APPELLANT: Yeah, at least for about a year or so.

68 Summary The Reasons for Decision and the transcript of the proceedings do not support the appellant’s contention that the Tribunal failed to ‘hear’ her case. The gravamen of her concerns raised in evidence and submissions was considered. There is nothing before us to indicate that the Tribunal failed to have regard to the documents she had provided or were, in effect, deaf to her arguments. That the Tribunal reached a different conclusion about the relevance of those matters and, ultimately, whether they warranted an interference with the POA or the revocation of her appointment, does not indicate that it failed to take her submissions into account. The rules of procedural fairness do not require that a party’s argument be accepted.

69 For these reasons we do not find that the Tribunal was in breach of the hearing rule.

2. Bias

70 The appellant made multiple claims of bias on the part of the Tribunal. On nearly every page of her submissions is some allegation, direct or indirect, of bias. It appears that she takes the view that the only reason her arguments could have failed is because of actual bias on the part of the Tribunal. The transcript, the evidence and her submissions provide no basis for this claim. We have noted above the extravagance of these arguments. We do not question the sincerity of her views, but find no objective basis for them.

Error in fact finding

71 While expressed as a failure to afford procedural fairness, the appellant also attacks various findings of fact made by the Tribunal. In addition she claims that the Tribunal failed to properly discharge its role as a finder of fact. She claims in effect that there was no basis for the finding that that the attorneys had properly managed IT’s funds. She argues that it was incumbent on the Tribunal to ‘at the very least’ call for documentary evidence that would support his sister’s claims about the management of her mother’s.

72 We deal with this alleged error below.

Appeal on any other ground?

73 The final issue to be determined is whether not having found an error of law, the Appeal Panel ought allow the appeal on ‘any other ground’ (s 118B(1)(b) of the Administrative Decisions Tribunal Act).

74 The factors to be taken into account in determining whether the discretion to grant leave should be exercised were considered in JT and Anor v Protective Commissioner & Ors [2004] NSWADTAP 13 at [32]:

Having decided that the Tribunal made no error of law, the Appeal Panel’s task is to determine whether leave should be given to appeal against the merits of the Tribunal's decision. 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. Those cases interpreted s 67 of Guardianship Act 1987 which is the equivalent provision to s 67A 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.

75 It seems to us that the one argument of any substance that the appellant raises is that the Tribunal failed in its task of properly finding the facts concerning her mother’s financial situation. She argues that ‘The Tribunal assessed that my mother’s finances were well-looked after without a single piece of evidence to support that assessment. This is a serious flaw in the hearing, defeats the very purpose of the hearing and the hearing should not have proceeded at that stage.’

76 In this case the Tribunal decided to review the operation and effect of a reviewable power of attorney: Powers of Attorney Act 2003, s 36(1). We assume that the Tribunal decided to carry out that review because of the seriousness of the allegations of impropriety that the appellant had made. The review carried out by the Tribunal in this case consisted of perusing the documents that each party had provided and hearing the appellant’s and the attorneys’ oral evidence in relation the way IT’s finances had been managed. The attorneys did not produce any documentation to support their claims concerning IT’s finances. The Tribunal was satisfied on the basis of that evidence that there had been no impropriety. While that conclusion may have been open to it on the evidence, given the protective nature of the jurisdiction, it would have been preferable for the Tribunal to have requested that the attorneys provide relevant financial records to verify their assertions. That request could not be described as onerous and would not have put the attorneys to any significant expense. If the records were provided and they confirmed the attorneys’ oral evidence, the Tribunal would have been justified in declining to make any further order. However, if the financial records were not produced or if they did not accord with the attorneys’ oral evidence, the Tribunal would in our view be justified in making any one or more of the orders listed in s 36(4) including an order that the records and accounts be furnished to the Tribunal.

77 While the Tribunal’s failure to request relevant financial records does not constitute an error of law, we regard it as an omission of sufficient significance to justify extending the appeal to the merits of the Tribunal’s decision. The Guardianship Tribunal’s jurisdiction is first and foremost a protective one. When serious allegations of impropriety are made the Tribunal should obtain the best evidence reasonably available when reviewing the operation and effect of a power of attorney. We set aside the Guardianship Tribunal’s decision and remit the matter to the matter for reconsideration in accordance with these reasons.

78 During this Appeal, the appellant made a number of wide ranging allegations about the attorneys, many of which had not been raised before the Guardianship Tribunal. Those fresh allegations are not remitted to the Tribunal. Rather the Tribunal is to redetermine its decision about the power of attorney application, on the basis of the existing evidence after requesting that the attorneys voluntarily produce IT’s financial records referred to by IU in her evidence (see Transcript of Proceedings, 4/7/08, pp 11 –14). If those records are not produced voluntarily, then the Tribunal should consider whether to make an order pursuant to s 36(4)(e). While a matter for the Tribunal, it may be that this issue could be disposed of ‘on the papers’.

Orders

1. The decision to revoke IS’ appointment as enduring guardian made by the Guardianship Tribunal on 4 July 2008 is affirmed.

2. The guardianship order in relation to IT made by the Guardianship Tribunal on 4 July 2008 is affirmed.

3. The order of the Guardianship Tribunal made under the Powers of Attorney Act 2003 on 4 July 2008 is set aside.

4. The power of attorney decision is remitted to the Tribunal as originally or similarly constituted for redetermination in accordance with these reasons.