IZ v JC, JB, JA

[2009] NSWADTAP 4

Appeal Panel - External

CITATION:

IZ v JC, JB, JA [2009] NSWADTAP 4

PARTIES:

APPELLANT
IZ

1ST RESPONDENT
JC

2ND RESPONDENT
JB

3RD RESPONDENT
JA

FILE NUMBER:

088015

HEARING DATES:

9 December 2008

SUBMISSIONS CLOSED:

9 December 2008

 
DATE OF DECISION: 

23 January 2009

BEFORE:

Hennessy N - Magistrate (Deputy President); Britton A - Deputy President; Field B - Non-Judicial Member

CATCHWORDS:

Procedural fairness, application of section 14 and section 4 of Guardianship Act to requests for review of guardianship orders under section 25(2)(a)

DECISION UNDER APPEAL:

Guardianship Tribunal Order: 2008/6079

FILE NUMBER UNDER APPEAL:

C/33754

DATE OF DECISION UNDER APPEAL:

09/24/2008

LEGISLATION CITED:

Administrative Decisions Tribunal Act 1997
Guardianship Act 1987

CASES CITED:

Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57
Re Refugee Tribunal; ex parte Aala (2000) 75 ALJR 52
Muin v Refugee Review Tribunal (2002) 76 ALJR 966
Kioa v West (1985) 159 CLR 550
J v Lieschke (1987) 69 ALR 647
Chen Zhen Zi v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 591
Hopkins v Smethwick Board of Health (1890) 24 QBD 712
Bakewell v MacPherson (unreported), SA Supreme Court (full Ct), 25 September 1992
IF v IG & Ors [2004] NSWADTAP 3
LA v Protective Commissioner & Ors [2004] NSWADTAP 39

REPRESENTATION:

APPELLANT
G Brack, agent

1ST RESPONDENT
J Simmonds, solicitor

2ND RESPONDENT
In person

3RD RESPONDENT
In person

ORDERS:

The decision made by the Guardianship Tribunal on 24 September 2008 in relation to IZ is affirmed.

Introduction

1 IZ is an 89 year old woman who was living in a nursing home in Sydney. She is physically disabled as a result of rheumatoid arthritis and uses a wheel chair. Dr Rosenfeld, a geriatrician who examined her in July 2008, expressed the view that mainly because of her physical disability, she “requires full time care, probably at the level of heavy nursing care a number of times a day, as well as other forms of instrumental and personal assistance throughout the day.” IZ has three adult children. The Guardianship Tribunal has appointed her two sons, JB and JC, as joint guardians and given them power to decide where IZ should live. Prior to moving to the nursing home in December 2006, IZ was living with her daughter, JA. She has expressed a wish to return home. According to Dr Rosenfeld, she “showed little or no insight into her physical needs and the reasons she was at the nursing home.” There is an ongoing dispute between IZ’s adult sons, JB and JC, and her adult daughter, JA, about where IZ should live.

2 On Sunday 21 September 2008, the daughter failed to return IZ to the nursing home after taking her out for a visit. At approximately 8 pm that evening someone from the nursing home rang JC to let him know that IZ had not returned. The following day JC contacted the Guardianship Tribunal requesting an urgent review of the guardianship order with a view to adding a coercive accommodation power and an access function to the existing functions. The purpose of that request was to enable JC to recruit the assistance of police or ambulance officers if necessary to return his mother to the nursing home. The Guardianship Tribunal decided to convene an urgent hearing for 24 September 2008 to consider JC’s application. IZ had not returned to the nursing home at the time of the hearing. The Guardianship Tribunal varied the guardianship order it had previously made by adding a coercive accommodation function and an access function. The terms of that order were as follows:

Accommodation

To determine where [IZ] may reside. Where necessary for [IZ’s] safety and well-being, the guardians may authorise others including members of the NSW Police Force and the Ambulance Service of New South Wales to:

(i) take her from her present location to a place of residence approved by the Guardian;

(ii) keep her at that place of residence; and

(iii) bring her back to that place of residence should she leave it.

Access

To determine who should have access to [IZ] and under what terms and conditions such access should take place.

3 The two sons and the Director of Nursing at the nursing home attended the Guardianship Tribunal hearing by phone. Neither IZ nor her daughter attended. Two people who are apparently acquaintances of IZ and JA (Ms Mahoney and Mr Brack) attended the hearing and applied for an adjournment on her behalf. The Tribunal refused to grant an adjournment and refused Mr Brack’s application to appear as IZ’s agent.

4 IZ has appealed against the Guardianship Tribunal’s decision. An appeal can be made as of right on a question of law and with leave in relation to the merits of the Guardianship Tribunal’s decision: Administrative Decisions Tribunal Act 1997 (ADT Act), section 118B(1). This appeal was made in relation to questions of law only.

Jurisdiction

5 The Guardianship Tribunal’s decision was made under section 25C of the Guardianship Act. The Appeal Panel has jurisdiction to hear an appeal against a decision made under that provision: Guardianship Act, section 67A and ADT Act, section 118A.

Parties and representation

6 IZ was a party to the proceedings before the Guardianship Tribunal as was each of IZ’s three children and they are therefore parties to this appeal: ADT Act, section 67(2A). While the Public Guardian is also a party to the appeal, she chose not to play any role in the proceedings. The Guardianship Tribunal itself is entitled to be a party to the proceedings: ADT Act, section 67(2B). The Tribunal elected to be a party and was represented by Ms Cho. In accordance with the principles in R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 at 35, her role is limited to making submissions in relation to the powers and procedures of the Tribunal.

7 Mr Brack represented IZ as her agent. JC was represented by a solicitor, Mr Siggins. JA and JB appeared in person.

Previous Guardianship Tribunal decisions

8 The decision under appeal was made against the background of several previous decisions. On 19 June 2006 the Tribunal made an order in relation to IZ noting that there had been a history of refusal by JA of the provision of services for her mother. On 9 January 2007, despite JA telling the Tribunal that she would accept services, the Tribunal found that she had not done so. The Guardianship Tribunal made a guardianship order appointing IZ’s two sons, JB and JC, as IZ’s joint guardians for three years. They were given certain functions including the accommodation function, that is, the power to decide where IZ should live. They decided that IZ should live in a nursing home. IZ did not want to stay in the nursing home and her daughter, JA, applied to the Guardianship Tribunal for a review of the guardianship order. The Tribunal acknowledged that there was a difference of views between the daughter and the sons and that IZ had expressed the view that she wanted to return to the home in which she had been living with her daughter. The sons’ view was that the home was unsafe and that IZ’s needs could not be met in that environment. On 28 August 2008 the Guardianship Tribunal confirmed the previous order. As noted, a month later, in September 2008, IZ failed to return to the nursing home after an access visit with JA. That led to the Guardianship Tribunal convening an urgent hearing on 24 September 2008 and making the decision which is the subject of this appeal.

Guardianship Tribunal’s reasons

9 The Guardianship Tribunal may review a guardianship order in certain circumstances. Section 25(1) of the Guardianship Act provides that:

Review of guardianship orders

(1) The Tribunal may, on its own motion, review any guardianship order.

(2) The Tribunal must review each guardianship order:

(a) at the request of any person entitled to request a review of the order, and

(b) at the expiration of the period for which the order has effect.

10 Following a review the Tribunal may vary, suspend, revoke or confirm the order: section 25C. The Tribunal's reasons for varying the order to add a coercive accommodation function and an access function appear at p 9 and 10 of its reasons:

The Tribunal noted that the guardianship and financial management orders made in relation to [IZ] were reviewed approximately 1 month ago and were confirmed without variation. At that time the Tribunal found that [IZ] was a "person in need of a guardian" for whom an order could be made. There is no new evidence properly before the Tribunal in relation to this issue apart from the report of Dr Zec and we did not consider that the report was in sufficient detail for the view of Dr Zec to be given any weight. The Tribunal is satisfied that [IZ] remains a person for whom a guardianship order could be made.

The guardians have been given the authority to decide where [IZ] should live. She had lived at (the nursing home) for approximately 20 months until she had been removed from there without consultation with the guardians. The decision of the guardians has been thwarted and functions previously given to the guardians to decide where [IZ] should live have been rendered, by this act, useless. We consider it necessary that the guardians should be given coercive functions so that they could engage assistance, if necessary, to move [IZ] to safe and proper accommodation in her best interests.

In addition, as it was apparent to us that [JA] was unwilling to abide by the orders of the Tribunal or the decisions of the guardians we considered that the guardians should be able to make decisions about who has access to [IZ] and the circumstances of any access so that [IZ’s] interests would not again be compromised.

Grounds of Appeal

11 We have divided IZ’s grounds of appeal into three categories: grounds that relate to decisions which are not appealable to this Tribunal; grounds that relate to a breach of procedural fairness; and other grounds allegedly disclosing a question of law.

12 Neither the refusal of an adjournment application pursuant to section 64 of the Guardianship Act nor the refusal to allow Mr Brack to represent IZ as her agent pursuant to section 58, are decisions which are appealable to the Appeal Panel. Section 67A of the Guardianship Act lists the kinds of decision which are appealable. Decisions made under sections 64 and 58 are not in that list. Consequently we have not addressed the appellant’s grounds of appeal in relation to those decisions.

13 The procedural fairness grounds of appeal are:

(i) inadequate notice of hearing;

(ii) insufficient information in the notice; and

(iii) reliance on documents and evidence relevant to previous proceedings, in particular photographs of IZ’s former residence.

14 The other grounds of appeal on questions of law are:

(iv) failure to attempt conciliation in accordance with section 66 of the Guardianship Act ;

(v) failure to satisfy itself of each of the fundamental elements necessary for the making of a guardianship order under s 14 of the Guardianship Act; and

(vi) failure to take into account the principles in s 4 of the Guardianship Act.

15 Mr Brack withdrew the grounds of appeal which did not relate to the Guardianship Tribunal’s decision on 24 September 2008. He also withdrew the ground that the Tribunal failed to provide him with certain documents.

Procedural fairness grounds – general principles

16 The Guardianship Tribunal is bound to afford parties procedural fairness if their interests are affected by a decision. The “hearing rule”, which is one aspect of the rules of procedural fairness, requires that a decision maker hear a person before making a decision affecting their interests: Re Refugee Tribunal; ex parte Aala (2000) 75 ALJR 52 at 73. In most cases that requires disclosing to parties who have an interest in the proceedings, the substance of any adverse or prejudicial information and giving them a reasonable opportunity to respond. There is no doubt that IZ’s rights were affected by the Tribunal’s decision. The consequences of the decision were extremely serious for IZ because it meant that she could be forcibly required to reside in a particular place against her wishes: Gribbles Pathology (Vic) v Cassidy (2002) 122 FCR 78 at 100.

17 The content of the hearing rule must be determined keeping in mind that the rules must be “appropriate and adapted to the circumstances of the particular case”: Kioa v West (1985) 159 CLR 550 per Mason J at 585. The Guardianship Tribunal’s jurisdiction is a protective one. One of its primary aims is to protect vulnerable people from neglect, abuse and exploitation: Guardianship Act, section 4(g). Both the nature of the jurisdiction and the urgency of any proceedings are relevant to the content of the hearing rule. Exceptional circumstances, such as the need to hear a matter urgently, may displace or modify the hearing rule: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 116 per Kirby J, at 100 per McHugh J; Muin v Refugee Review Tribunal (2002) 76 ALJR 966 at 991 per McHugh J; Kioa v West (1985) 159 CLR 550 at 629 per Brennan J; J v Lieschke (1987) 69 ALR 647 at 653 per Brennan J; Chen Zhen Zi v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 591 at 600-601 per Black CJ, Lee and Heerey JJ.

Inadequate notice of hearing

18 Reasonable notice. Section 25(4) of the Guardianship Act sets out the requirements imposed on the Tribunal to serve a notice of the hearing on parties to a review of a guardianship order:

Before carrying out the review, the Tribunal must cause a notice specifying the date on which, and the time and place at which, the Tribunal will carry out the review to be served on each party to the proceedings. The review is taken to have commenced on the issue of such a notice.

19 Section 25(4) does not specify any period of notice. However, the rules of procedural fairness require that a person whose interests are affected by a decision be given adequate notice of the hearing. Adequate notice includes being given reasonable notice of the time, date and location of the hearing: Hopkins v Smethwick Board of Health (1890) 24 QBD 712 at 715.

20 On 22 & 23 September 2008, the Guardianship Tribunal attempted to notify IZ and her daughter, JA, of the hearing by the following means:

(a) sending a Notice of Hearing by Express Post to IZ at the address where she had previously resided with her daughter; and

(b) telephoning the daughter and leaving a message on her phone asking her to contact the Tribunal.

21 Ms Cho, representing the Guardianship Tribunal, noted that all the parties had previously been involved in Guardianship Tribunal proceedings and were aware of the procedures involved.

22 We accept Mr Brack’s evidence from the bar table that the express post letter sent by the Guardianship Tribunal which included the Notice of Hearing and the application for a review of the guardianship order was received at 3 pm the day before the hearing.

23 Ms Cate Mahoney faxed a letter to the Guardianship Tribunal requesting an adjournment. She also attached a letter purportedly dictated by IZ telling the Guardianship Tribunal of her situation. Mr Brack said that, perhaps somewhat naively, IZ and her daughter, JA, assumed that the matter would be adjourned as IZ had arranged a medical appointment for the afternoon of 24 September 2008. We note that the guardianship order of 24 September 2008 had given JB and JC the function of health care, that is to determine what health care and major and minor medical and dental treatment IZ my receive. It appears that JA and/or IZ may have been in breach of this order by arranging this medical appointment.

24 The Guardianship Tribunal telephoned JA during the course of the hearing and received no answer. The Tribunal did not follow up on its initial suggestion that a call could be made to the doctor's surgery which IZ and JA were attending at the time. The Guardianship Tribunal also had copies of two letters, one from Dr Zec, a general practitioner, dated 23 September 2008 and the other from IZ. The letter from IZ said, in part, “[JA] and an assistant volunteer are taking good care of me at home, and I am pleased to report that I am safe, well and happy.” The letter from Dr Zec said in part, that IZ looks “well and happy and that she is “happy to stay at home”. Dr Zec expressed the view that there was no need for a “coercive accommodation” power.

25 The Tribunal refused the application for an adjournment and gave reasons for that decision at page 6 of the decision:

The Tribunal was very concerned about [IZ’s] health and safety. It was clear that she had been removed from (the nursing home), a place she had lived for approximately 20 months, by her daughter [JA] against the wishes of her guardians. She has numerous health issues and ongoing high-level medical and care needs. It appeared she was living in her home at (name of suburb) which was run down and not safe, according to the photographic and other evidence before the Tribunal.

We considered that this was an urgent situation and that the hearing should proceed without the attendance of [IZ]. The previous Tribunal has already given the guardians the authority to decide where [IZ] lived. However that decision had been frustrated by the removal of [IZ] by [JA]. We were being asked to allow adjuncts to that function which would allow the decisions of the guardians to be given effect and [IZ] to be returned to a place where her needs could be looked after. In all the circumstances we decided that it was in [IZ’s] best interests to proceed to hear the matter on an urgent basis.

26 JB gave brief evidence to the Appeal Panel that the situation at the time was urgent because he did not know where IZ was living despite his attempts to find out. JA also gave evidence saying that her mother was at home and that the nursing home knew where she was. She said that it is not her fault if the nursing home did not communicate that information to her brothers. We decline to admit any fresh evidence on the issue of whether or not the situation was an urgent one. Mr Brack agreed that there was no evidence before the Guardianship Tribunal as to whether or not IZ intended to return to the nursing home.

27 Mr Brack’s submission was that given the significance of the consequences of a coercive accommodation power more than 24 hours notice was required.

28 Conclusion. The Tribunal complied with section 25 by serving the Notice of Hearing on IZ which contained the date, time and place of hearing. In general, a person whose rights stand to be affected by a decision must be given sufficient time to prepare their case. However, whether or not less than 24 hours notice was adequate depends on factors including the purpose of the proceedings and its urgency: Bakewell v MacPherson (unreported, SA Supreme Court (full Ct), 25 September 1992, at 22). The circumstances of this case were that JB and JC had been appointed as IZ’s guardians and given the function of determining where she should live. The decision made by the guardians that IZ should live in the nursing home had effect as if the decision had been made by IZ: Guardianship Act, section 21C. A person who was not IZ’s guardian, JA, had failed to return IZ to the nursing home after an outing. Neither JA nor IZ had given any indication to the nursing home as to whether IZ would be returning.

29 It is not incumbent on the Tribunal to exhaust every potential avenue of contact before proceeding to hear a matter in the absence of the subject person. The Tribunal unsuccessfully tried to contact JA by phone both prior to and during the course of the hearing. The fact that the Members did not also phone the doctor’s surgery where JA and IZ were said to be located does not amount to a breach of procedural fairness.

30 While there was some documentary evidence that IZ was safe, well and happy, the Tribunal also had access to evidence from previous applications, including photographs of IZ’s home, which indicated that at that time the accommodation was not suitable for her needs. While the period of notice was extremely short, both IZ and JA were aware of the hearing and chose not to contact the Tribunal directly. In our view there was no breach of procedural fairness in proceedings with the hearing in their absence given the urgency of the situation and the history of the matter.

Inadequate content of the notice

31 Submission. Mr Brack submitted that the Notice of Hearing did not clearly identify that an option for the Tribunal was to make a coercive accommodation power. Although the email attached to the Notice of Hearing referred to such a power, Mr Brack said that a layman would not have understood the significance of what was proposed. It was not sufficient in his view that the Notice of Hearing merely referred to the Guardianship Tribunal's intention to review the order.

32 Conclusion. There is nothing in s 25 that requires the Guardianship Tribunal to spell out the possible orders that it is empowered to make if the application before it is successful. Even if that were a common law requirement, IZ was advised of the possibility that a coercive accommodation power was a possibility in the email attached to the Notice of Hearing. Given the urgency of the situation and the unsuccessful attempts by the Guardianship Tribunal to contact IZ and JA by phone, the failure to be any more explicit about the possible orders that the Guardianship Tribunal could make does not constitute a breach of procedural fairness.

Reliance on evidence in previous proceedings

33 Submissions. Mr Brack said that the Guardianship Tribunal had relied on photographs showing IZ’s living conditions before moving to the nursing home. At page 6 of the decision the Tribunal said:

It appeared she was living in her home at [name of suburb] which was rundown and not safe, according to the photographic and other evidence before the Tribunal.

34 Mr Brack said that he had no opportunity to contradict that material and had he been given an opportunity to do so he would have said that the photographs did not reflect the current state of IZ’s house. Ms Cho said that the photographs were not tendered at the hearing, rather they were on the previous file which was made available to the Tribunal members conducting the review.

35 In addition Mr Brack said that IZ did not have the opportunity to respond to assertions made by the Director of Nursing at the hearing that IZ needed high-level care. Mr Brack denied that high-level nursing care was necessary.

36 Conclusion. Mr Brack was not a party to the proceedings nor had he been given leave to represent IZ as her agent. The fact that the hearing was held in the absence of IZ meant that she could not be given an opportunity to comment on any adverse material. In our view it was not a breach of procedural fairness to proceed in IZ’s absence because of the urgency of the matter and the history of the dispute between the parties. Consequently, it was not a breach of procedural fairness to fail to give IZ an opportunity to respond to adverse material.

Failure to attempt conciliation

37 Power to conciliate. Section 66 of the Guardianship Act obliges the Tribunal to attempt to settle the matter before making a decision unless it considers that it is not possible, or appropriate, to attempt to bring the parties to a settlement. Section 66 states that:

(1) The Tribunal shall not make a decision in respect of an application made to it until it has brought, or used its best endeavours to bring, the parties to a settlement.

(1A) Subsection (1) does not apply in respect of an application if the Tribunal considers that it is not possible, or appropriate, to attempt to bring the parties to a settlement.

(2) Any meetings conducted or proceedings held in the course of attempting to bring or bringing the parties to a settlement shall not be conducted or held in public.

(3) Any statement or admission made during the course of a conciliation hearing is not, except with the consent of all the parties, admissible as evidence in proceedings before

38 Submissions. Mr Brack said that the Tribunal’s failure to attempt conciliation constitutes an error of law because it was possible to do so in this case had IZ been present. Mr Brack said that the Guardianship Tribunal should never make a determination without first attempting conciliation.

Conclusion. It follows from our conclusion that it was not a breach of procedural fairness to conduct the hearing in the absence of IZ and JA, that it cannot have been an error of law to fail to attempt conciliation. The absence of these parties, either in person or by phone, made it impossible to do so. Section 66(1A) provides that the duty to conciliate does not apply in those circumstances. No error of law is disclosed in this ground of appeal.

Application of section 14

39 Mr Brack submitted that the Guardianship Tribunal erred in law by failing to determine whether the fundamental elements necessary for the making of a guardianship order were still present before varying the order. Section 14 of the Guardianship Act describes the circumstances in which the Guardianship Tribunal may make a guardianship order:

(1) If, after conducting a hearing into any application made to it for a guardianship order in respect of a person, the Tribunal is satisfied that the person is a person in need of a guardian, it may make a guardianship order in respect of the person.

(2) In considering whether or not to make a guardianship order in respect of a person, the Tribunal shall have regard to:

(a) the views (if any) of:

(i) the person, and

(ii) the person’s spouse, if any, if the relationship between the person and the spouse is close and continuing, and

(iii) the person, if any, who has the care of the person

(b) the importance of preserving the person’s existing family relationships,

(c) the importance of preserving the person’s particular cultural and linguistic environments, and

(d) the practicability of services being provided to the person without the need for the making of such an order.

40 The expression a "person in need of a guardian", which is used in section 14(1), is defined in section 3 of the Guardianship Act 1987 to mean "a person who, because of a disability, is totally or partially incapable of managing his or her person". A "person who has a disability" is defined in section 3(2) as a person:

(a) who is intellectually, physically, psychologically or sensorily disabled,

(b) who is of advanced age,

(c) who is a mentally ill person within the meaning of Chapter 3 of the Mental Health Act 1990, or

(d) who is otherwise disabled,

and who, by virtue of that fact, is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation.

41 Mr Brack said that the Tribunal did not take into account evidence of Dr Finnegan, a geriatrician who saw IZ on 10 September 2008. His conclusion was that IZ’s cognition was “normal for her age”. Consequently, IZ was not a “person in need of a guardian”.

34 In IF v IG & Ors [2004] NSWADTAP 3 at [20], the Appeal Panel noted that there is no provision in the Guardianship Act which expressly stipulates the matters which the Guardianship Tribunal is to take into account when performing its review function under 25(2)(b), and when determining which of its powers in section 25C(2) should be exercised. The Appeal Panel concluded that, “By implication the matters which must be considered are those set out in section 14”. We note that the Appeal Panel’s conclusion relates to an “end of term” review under section 25(2)(b), not to a review by a person entitled to request such a review under section 25(2)(a).

42 Conclusion. While we agree that the Guardianship Tribunal should address each of the elements required to make a guardianship order when conducting an end of term review under section 25(2)(b), we are not persuaded that the Guardianship Tribunal always needs to make a fresh determination that the subject person is a person “in need of a guardian” when considering an application for review during the term of the order. Reviews conducted at the request of an interested person are generally made in the context of an alleged change in circumstances. That change may not relate to the question of whether the person is a person in need of a guardian. In this case the change in circumstances was the fact that IZ was no longer residing in the accommodation in which her joint guardians had decided she should reside. In our view, the Tribunal did not make an error by failing to make a fresh determination as to whether IZ was a person in need of a guardian. It would have been different if there had been evidence that IZ was no longer a person in need of a guardian. In this case, the evidence of Dr Finnegan was not to that effect. A person can be a person in need of a guardian whether or not they have full cognitive capacity. Physical disability is sufficient as long as it restricts a person in one or more major life activities to such an extent that he or she requires supervision or social habilitation. Consequently the Tribunal made no error on this count.

Application of principles in s 4

43 Section 4 of the Guardianship Act sets out the principles that the Tribunal must take into account when exercising functions under that Act. One of those principles is that “the welfare and interests of such persons should be given paramount consideration”. Mr Brack said that the Tribunal did not take into account IZ’s view that she did not want to live at the nursing home. Under the heading “[IZ’s] views” at p 7 the Tribunal wrote:

Unfortunately as [IZ] did not attend the hearing and was not contactable by phone we did not have the opportunity to have a direct discussion with her about her views. However we did have several letters, referred to above, which purported to express her views. [IZ’s] views according to those letters that she wants to live at her home at [name of suburb], that [JA] and a volunteer are taking good care of her, that she is safe, well and happy, and that she does not want [JB] and [JC] to continue to be her guardians.

The Tribunal was not wholly confident that these letters were a true expression of [IZ's] views. In this regard we noted [JC’s] opinion that the letters used language that his mother did not normally use and that they did not sound like they were dictated or written by her.

44 In LA v Protective Commissioner & Ors [2004] NSWADTAP 39 at [32] to [36] the Appeal Panel considered the effect of section 4 and concluded at [37] that:

37 On the basis of this reasoning non-observance of principles would constitute an error of law where the principle is specifically mentioned in the substantive provision. The extent to which non-observance of the principles will amount to an error of law in other cases is not clear. In accordance with the approach taken by Windeyer J in W v G [2003] NSWSC 1170 it may not be an error of law to fail to consider the views of the subject person where there is evidence that those views would be unreliable. That is the approach we have taken in this case.

45 Conclusion. The Tribunal referred to the views of IZ but could not verify those views in her absence. It cannot be said that it failed to take evidence of her views into account to the extent that it was persuaded that they were genuine. There has been no error of law in relation to the application of the principles in section 4.

Order

The decision made by the Guardianship Tribunal on 24 September 2008 in relation to IZ is affirmed.