JLW v Guardianship and Administration Board
[2011] TASSC 66
•13 December 2011
[2011] TASSC 66
COURT: SUPREME COURT OF TASMANIA
CITATION: JLW v Guardianship and Administration Board [2011] TASSC 66
PARTIES: JLW
v
GUARDIANSHIP AND ADMINISTRATION BOARD
ATTORNEY-GENERAL for the STATE of TASMANIA
FILE NO/S: 467/2011
JUDGMENT
APPEALED FROM: WKX (Guardianship) [2011] TASGAB 6
DELIVERED ON: 13 December 2011
DELIVERED AT: Hobart
HEARING DATE: 30 November 2011
JUDGMENT OF: Tennent J
CATCHWORDS:
Procedure – Supreme Court procedure – Tasmania – Appeals other than from judge of Supreme Court – Nature of appeal – Appeal from decision of Guardianship and Administration Board – Appeal on question of law as of right – Test to be applied in respect of any other question.
Guardianship and Administration Act 1995 (Tas), ss11, 13(1)(a), 24, 25, 68, 71, 72, 76, 86.
Slinko v Guardianship and Administration Tribunal & Anor [2006] QSC 39; KB & RB v The Guardianship and Administration Board [2007] TASSC 45, followed.
Aust Dig Procedure [282]
REPRESENTATION:
Counsel:
Appellant: In person
First Respondent: A McKee
Second Respondent: A McKee
Solicitors:
Appellant: In person
First Respondent: Director of Public Prosecutions
Second Respondent: Director of Public Prosecutions
Judgment Number: [2011] TASSC 66
Number of paragraphs: 43
Serial No 66/2011
File No 467/2011
JLW v GUARDIANSHIP AND ADMINISTRATION BOARD
ATTORNEY-GENERAL
REASONS FOR JUDGMENT TENNENT J
13 December 2011
On 22 October 2004, the Guardianship and Administration Board ("the Board") made an order by which it appointed the Public Guardian ("the PG") the guardian of V. By virtue of the Guardianship and Administration Act 1995 ("the Act"), s24, such an order expired at the expiration of three years after the date on which it was made unless it was continued under the Act, s68.
The order in respect of V was to remain in force until 21 October 2007. W, V's father, appealed the decision unsuccessfully. W also sought a review of the decision which was also unsuccessful. Therefore, the order made in 2007 was extended to 2010. On 22 July 2010, W sought an order that he be appointed the guardian of V in place of the PG. On 6 April 2011, the Board conducted a hearing. There were two matters to be dealt with. One was the three year review of the 2007 order by which the PG had been appointed the guardian of V. The other was the application by W that he be appointed guardian of V.
The Board delivered a decision by which it refused W's application, and continued the appointment of the PG as guardian of V. W has appealed that decision, ultimately relying on grounds of appeal filed with the Court on 19 October 2011. This decision relates to that appeal.
The Act, s76, provides for appeals from decisions of the Board. There is no dispute that W was a person entitled to appeal the decision of the Board. An appeal could be brought on a question of law as of right. However, if an appeal related to any other question, it could only be brought with the leave of the Court. W was unrepresented at the hearing of the appeal. There had been directions hearings prior to the final hearing of the appeal in an effort, primarily, to confine the documents to be included in the appeal book. The directions hearings were also an attempt to ensure W realised that some of the matters about which he wished to appeal were not questions of law, and therefore he would need to seek the Court's leave to argue them. These issues were not resolved prior to the commencement of the hearing of the appeal, and the matter therefore proceeded on the basis that the determinations as to whether leave was needed to argue particular grounds would be made as part of the overall decision.
In Slinko v Guardianship and Administration Tribunal & Anor [2006] QSC 39, the court considered the test to be applied in determining whether leave to appeal on a question other than one of law should be granted. CJ de Jersey at par[11]-[16] outlined the test in the following terms:
"11. To warrant a grant a (sic) leave to appeal in relation to factual findings of the Tribunal, an applicant must in my view demonstrate a seriously arguable case of error in a finding central, and not merely peripheral, to the determination, such that it would be unjust to allow the finding to stand.
12. It goes without saying that it would be plainly insufficient for an applicant to simply contend that a differently constituted Tribunal could have taken a different view. The suggested error must rest in the adoption of a factual position beyond the realms of reasonableness, or one which is clearly mistaken.
13. Ordinarily for a grant of leave, the seriously arguable obtuseness or wrong-headedness of the factual finding will be plainly and readily apparent: it should not be necessary to embark on a comprehensive re-examination of the evidence to identify the error. It would subvert the legislative intent if, factual error being suggested, the court were to embark on a comprehensive re-examination of the facts of the case to exclude the possibility.
14. Accordingly, an applicant for leave to appeal on the facts should with precision identify the suggested error. As necessary, the court will assess the significance of the finding to the overall conclusion, and if that is substantial, refer to supporting (and any compelling contrary) evidence.
15. It should usually be possible to reach a view whether error is seriously arguable in a relatively broad way, without the need for an extensive journey into the proceedings before the Tribunal.
16. On the reasonable assumption that the Tribunal carefully and conscientiously goes about its task, it follows that a grant of leave to appeal on the facts should be a rarity."
Slicer J, in KB & RB v The Guardianship and Administration Board [2007] TASSC 45, accepted the submission of counsel for the Attorney in that case that the appellants had to establish a seriously arguable case of error in a finding central and not merely peripheral to the determination, accepting clearly the views expressed in Slinko's case.
Ground 1
This ground provided as follows:
"That the Board has erred in law in that it has fully identified both the Represented Person and the appellant in its Reason for Decision (R.F.D.) of 6-4-2011 and all previous R.F.D. dating back to 22-10-2004. That both persons are linked in R.F.D. to the criminal allegations, falsely alleged without any evidence or witnesses."
The error complained of was that the full names of both W and V appeared in the decision of the Board. It was asserted that this constituted a breach of the Act, ss13(1)(a), and 86. Those sections respectively provided:
"13 Reports of proceedings
(1) Except as provided by subsection (2), a person must not publish –
(a) any particulars calculated to lead to the identification of any person in respect of whom any proceedings of the Board have been brought or any other person concerned in the proceedings; and ...
86 Confidentiality of information
(1) A person must not disclose any information obtained by the Board or the Public Guardian under this Act that deals with the personal history or records of a represented person, proposed represented person or a person to whom Part 6 applies except –
(a) at a hearing under this Act; or
(b) where in the opinion of the Board or the Public Guardian it is in the best interests of the represented person to disclose the information; or
(c) where the disclosure of the information is made by a person authorized in writing either generally or in a particular case by the President.
(2) Subsection (1) does not prevent the disclosure of information as required or permitted by any law if, in the case of information relating to the personal affairs of another person, that other person has given consent in writing.
(3) Nothing in this section prohibits the Board from publishing notices of hearings or other notices that may be necessary in the interests of justice or for the proper administration of this Act."
The copy of the decision of the Board provided to the parties who appeared at the hearing did contain the full names of W and V. The appellant asserted that the version of the decision placed on the internet did the same. However, he produced no evidence to support that contention. Even were it to be found that the internet version of the decision contained the full names of these parties, and that amounted to a breach of the provisions of the Act identified, it is difficult to see how such a breach could amount to an error of law arising from the Board's decision or an error within the parameters outlined in Slinko's case, such that the decision of the Board should be overturned. This asserted error suggests a misunderstanding by the appellant of the primary focus of the Board's hearing. Such a hearing was to determine who, in all the circumstances, was the appropriate person to be the guardian of V. The asserted error has no relevance to that issue.
The appellant also raised in respect of this ground a matter which underpinned several of his grounds of appeal. It is obviously an issue which dominates his thinking in his dealings with the Board and the PG, and unfortunately serves only to distract him from what should be his focus, namely the best interests of V. V resides in supported accommodation. At some stage, it was reported that the appellant may have engaged in potentially inappropriate sexual activity with V. The issue was referred to in the reasons for the decision of the Board. However, the Board specifically disavowed reliance on any such allegation in concluding that the PG was the most appropriate guardian for V.
There has been, in my view, no error of law demonstrated by this ground, nor any error on any other question which would warrant interference with the Board's decision.
Ground 2
Ground two was in the following terms:
"That the Board has erred in law in that it has not reported to Police the alleged criminal acts against the Represented Person reported to it by others."
This ground relates again to the alleged sexual activity referred to when dealing with ground one. The underlying complaint by the appellant is that an issue of inappropriate conduct has been raised, and he wants it resolved, and resolved in the form of his being vindicated in his denials. The appellant's pursuit of this issue, as I have already said, distracts him from appreciating the Board's role, which was to determine an appropriate guardian for V. It is not necessarily the Board's role to conduct a hearing, hear witnesses and then determine if the assertion of inappropriate activity is true or not. Were the assertion one which the Board felt would impinge on its decision as to V's appropriate guardian, it would be accepted that the Board might need to hear evidence and make findings. However, that is not the case here. The Board did not rely in any way on the assertions. In any event, the ground asserts an error in failing to report the matter to police. The appellant did not articulate any basis upon which he argued the Board had any obligation to make such a report. Even if it were accepted the Board had an obligation to report the assertions to police, the appellant did not articulate how the Board's asserted failure to do so could amount to an error on the part of the Board in performing its function in this matter, which was to determine the appropriate guardian for V. This ground must fail.
Ground 3
Ground three provides:
"That the Board has erred in law in not requiring those alleging said criminal assaults against the Represented Person to report those allegations to Police."
For the same reasons expressed in relation to the previous grounds, this ground must also fail.
Ground 4
Ground four provides:
"That the Board erred in law and in Procedural Fairness and to observe the rules of Natural Justice in rejecting the Public Guardians (P.G.) submission to my application to the guardianship and then advising the P.G. on how the Board wished her to respond, item by item to my application, resulting in the Board being co-author of the P.G. submission it has then called the judgement upon.
The Board then gave the P.G. a 3 month extension of time to prepare her submission and to obtain legal advice.
· See R.F.D. Page 3 Para 3 A.B. 153
· See R.F.D. Page 3 Para 4 and Para 1 Page 4 - the Board clearly states the P.G. complied with their directions. A.B 153-154
· The Board in its 25 page R.F.D. refers to Bickel report, false allegations for 10 pages, then states its decisions is not influence by the report."
This ground of appeal demonstrates a lack of understanding of how the Board operates, and also raises an issue which has been a long-standing source of complaint for the appellant. The Act, s11, deals with the manner in which the Board operates procedurally. In particular, it provides that the Board must, in any hearing, act according to equity and good conscience without regard to technicalities or legal forms. The Board is bound by the rules of natural justice, and is not required to conduct its proceedings in a formal manner. In this particular case, a member of the division of the Board which was to conduct the hearing, Deputy President Mr C McKenzie, conducted what might be described as a directions hearing on 17 September 2010. By that stage, the appellant had lodged a form of notice of appeal. Mr McKenzie directed that the appellant file a further document outlining in point form the issues he sought to rely upon in support of his application for guardianship. Mr McKenzie also ordered that the PG respond to the appellant's summary of submissions. After these steps were taken, Mr McKenzie convened a further directions hearing. At that hearing, he directed that the PG provide a further and better response to the material filed by the appellant.
A review of the file note and transcript in respect of those directions hearings reveals that no advice was given to the PG by Mr McKenzie about what material it should put in its response. All he did was direct that more detailed information about matters be provided. The appellant also relied on the fact that the Board stated in its decision that the PG had complied with its directions as further support for his argument that the Board co-authored the PG's submissions. The section of the Board's decision in which this comment is made is simply a summary of the pre-hearing steps taken prior to the ultimate hearing, and, in my view, it is in no way a suggestion that the Board had any form of inappropriate input into the preparation of the PG's submissions. There is absolutely nothing by way of material before this Court to suggest that any member of the Board co-authored the submissions provided to the Board by the PG. Insofar as this ground of appeal relies on that assertion, it must fail.
The appellant also submitted that in some way the Board had erred when it allowed to the PG a period of three months within which to prepare her submissions for the Board. There is no suggestion that this did not happen. However, no complaint was made at the time by the appellant, nor did he seek an extension of time when a shorter period of time was allowed to him for the preparation of submissions. The appellant does not suggest that he was in any way prejudiced at the hearing by the timeframes permitted to each party for the preparation of their submissions.
As to the reference to the Bickel report, this is a reference to a report prepared by a psychologist some years before the hearing. The appellant sought to obtain a copy of the entire report. The Board refused to provide it, but did provide to both parties a copy of the last page of the report which contained certain recommendations. In making this statement, I have referred to the Board in a general sense. The reason for this is that the Board is constituted from time to time by different divisions. That is, the Board which hears a particular matter may be constituted by certain members, whereas another matter might be dealt with by the Board constituted by entirely different members. The members of the Board who heard this matter made it clear in their decision that none of them had had access to the entirety of the Bickel report, and in fact had only had access to the same page to which the parties at the hearing had access. The appellant clearly does not accept this, although can point to no evidence to the contrary. He described it as suspicious. It is true that the report has been referred to during the course of the Board's decision from the April hearing. A reading of the decision reveals however that the references to the report appear under a heading "Application for Access to Documents". The appellant, as I have indicated, sought to obtain a copy of the entire report. The section of the Board's decision in which there is reference to the report relates to its reasons for refusing access to the document.
I have already made reference to the level of consideration given to the particular report. For the foregoing reasons, this ground of appeal must fail.
Ground 5
This ground provides:
"That the Orders of the Board are wrong and not applicable to an Adult Person."
This ground does contain further information which I have not set out. There is no need for me to do so. It is not a ground which can be sustained, because it relies upon an interpretation of the Act, s25, which is plainly wrong. Relevantly, s25(1) provides:
"25 Authority of full guardian
(1) A guardianship order appointing a full guardian confers on the full guardian in respect of the represented person all the powers and duties which the full guardian would have in Tasmania if he or she was a parent and the represented person his or her child."
The appellant argued that what this section meant was that it applied only to a child and not an adult. That interpretation is simply not open on a plain reading of the section and misunderstands its wording. This ground of appeal must fail.
Ground 6
This ground provides:
"The Board has erred in law and every code of Human Rights in that the Board by its orders has permitted the P.G. to continue to deny V permission to attend worship at his church for over 3 years."
This ground does not raise an error of law. In those circumstances, the appellant needs the leave of the court to argue the issue. The appellant, before the Board, raised the issue of his son's attendance at church. He argued that his son continuously sought to be able to attend church, and that his wishes in this regard were being ignored. This was a matter to which the PG responded. There was a dispute on the evidence before the Board as to V's wishes about attendance at church. It was a matter which the Board considered and dealt with in its reasons for decision. It is clearly a matter of importance to the appellant, and he continues to be unhappy with any arrangement which does not see his son attending church as the appellant wishes him to do.
The appellant has not, in my view, demonstrated that the Board's decision in continuing the appointment of the PG as V's guardian contains a seriously arguable case of error in relation to a finding central to its decision by reference to this issue. This ground of appeal must fail.
Ground 7
This ground provides:
"The Board did not comply with Procedural Fairness nor Natural Justice in its directions to the P.G., R.F.D. Page 3 Para 3 & 4 in which it states the P.G. complied with its directions and lists 9 reports which emanated as a result of its directions to the P.G.
· See A.B. 153-154
· Item 7 being the Rosie Bickel report (assessment only)
· The Board has had this report in its possession since Dec 2006
· The Board refused to give a copy of this report to the Appellant
· The Board claiming that those interviewed for the report MAY have been given anonymity, given an assurance that their names would not be revealed.
· Bickel not called to confirm her report.
· No evidence has been produced to substantiate such a claim.
· Such a promise of anonymity must be seen as a free pass to make false allegations about matters which have resulted in shredding my name and reputation.
· Clearly the appellant is entitled to documentation which sets out to destroy him with false allegations / allegations for which no evidence exists.
· The Appellant asks this Honourable Court to reconsider and make this document The Bickel Report available to him. See 85 1 and 2 of The Act."
It was somewhat difficult to understand the nature of this ground. However, in oral argument, it appeared that the appellant was returning to the same argument earlier articulated around the failure of the Board to provide him with a full copy of the Bickel report. The appellant reiterated a number of matters he had already raised about this. This ground must fail, in particular because the Board made it perfectly clear that, in reaching its decision as to the person it believed was the most appropriate guardian for V, it disregarded the report, or at least that part of the report to which it had had access.
Ground 8
This ground provides:
"The Board in its R.F.D. 6/4/11 Page 10 A.B. 160 and concerning the Bickel Report says, Quote 'It is not the Boards role to provide a forum for vindication in the fact of disputed allegations of sexual misconduct.'
· See A.B. 158, 159, 160.
· The Board is wrong in law it is not the role of the falsely accused to prove his innocence it is the role of the Board to require evidence not allegations from the accusers, or otherwise not to permit the allegations to be aired in their review of guardianship.
· The Board has erred in its duty of act fairly in procedural fairness to allow false allegations to flourish and even to encourage them with immunity to offenders."
This ground does not, in my view, raise a valid ground of appeal, and again seeks to agitate the appellant's unhappiness with the manner in which he perceives the Board and/or the PG have dealt with certain allegations. The appellant has quoted a portion of the Board's reasons. However, he has not referred to enough of the reasons to ensure that the words he has specifically quoted are put in context. The Board in fact said:
"It is not the Board's role to provide a forum for Mr W. to obtain vindication in the face of the disputed allegations of sexual misconduct unless resolution of that dispute is necessary to determine the application. The Board has decided that it can determine the application without resolving that dispute."
A review of the Board's decision demonstrates clearly that it felt it was in a position to determine the appellant's application for guardianship without having to resolve the question of whether he had or had not engaged in some form of inappropriate sexual activity. There was clearly sufficient other material available to the members of the Board upon which they could determine that the PG was the more appropriate guardian. This ground of appeal must fail.
Ground 9
This ground provides:
"R.F.D. appeal book Page 154 paragraph 3.
· The Board is in error and misinterprets the requirement of the ACT in that it seeks shelter from its commitment to the Act by quoting 71A.
· On 17/09/10 this applicant was given 14 days to resubmit my application on the grounds it was not formally correct.
· It is the Appellants claim that the Board in fact found the P.G. submission to be incompetent and desired her to have an extension of time to correct it.
· 30/09/10 I resubmitted my application See A.G. 153
· 25/10/10 P.G. submitted response which the Board found incompetent
· Nov The Board speaks to P.G. by telephone hookup instructing her on how to REPORT to every point of my application
· Given 5 weeks to respond
· 18/02/10 Given another 5 weeks to seek legal advice
· 20/01/11 in compliance with the Boards directions the P.G. responded with 9 issues, 3 or which were over 5 years old and included the Bickel report.
· 1/03/11 I resubmitted my application as a reminder to the Board under 72B of The Act
· Mid-March I am informed hearing set for 6/04/11
· The Appellant submits that 71A was not intended to protect the Board for the 245 days taken after my first application, instead of the 45 days maximum allotted under The Act see 72B.
· See A.B. 260 – 5 weeks to give decision. 06/04/11 – 11/05/11"
It became apparent during the course of argument in respect of this ground that the appellant was relying on a version of the Act, ss71 and 72, which had not been in force for several years. His argument was advanced on the basis that the Board had not commenced a hearing within 45 days after the day upon which his application had been received, and therefore its decision was invalid. Section 72 of the Act provides that the Board must commence the hearing of an application under the Act within 45 days after the date upon which an application is received. There can be no dispute that the actual hearing of the appellant's application did not take place until well outside that 45 day time limit. However, there were clear reasons for this, and it is arguable in any event that the directions hearings undertaken commencing in September 2010 were part of the hearing of the appellant's application. In any event, s71 clearly provides that a hearing or determination of the Board is not to be invalidated or affected by reason only of the fact that it was not held or made within the time required by the Act.
The appellant did not otherwise articulate any basis upon which it might be said he suffered prejudice by the time which was taken to ultimately deal with his application. In all the circumstances, this ground of appeal should fail.
Ground 10
This ground provides:
"The orders of the Board are in error and a gross negligence and not in my sons best interests in that it has not given any consideration to my son's rehabilitation which at the time of my application in July 2010 was spasmodic.
· Which at the date of the hearing 6/04/11 over 8 months after my application had totally-ceased, no pool therapy, no gym, both totally ceased for entirety of 2011 to this date. See A.B. 178-179"
The issues raised by this ground of appeal are clearly questions of fact. As such, the appellant requires leave to argue them and must meet the test already referred to. The transcript of the hearing before the Board shows that this complaint was aired during the course of the hearing, that the Board heard argument from both the appellant and the PG about it, and that the Board made findings. There is nothing to suggest that the findings made were not open on the evidence before the Board. The appellant has, in my view, failed to satisfy the Court there is a seriously arguable error, and this ground must therefore fail.
Ground 11
This ground provides:
"That the Board has erred and acted with unrestrained bias in its determination – R.F.D. A.B. Page 167 Para 4. The Board states quote 'In this respect the Board prefers the versions of contested events contained in evidence, of the P.G. where it conflicts with Mr W's evidence.'
· The Board shows bias in accepting the contested allegation of the P.G. without her providing any evidence or witnesses, including Rosie Bickel.
· The Board denying the applicants submissions because I did not present Dr Jackson G.P., or Dr Geelan dentist to confirm the letters they had written of their concerns.
·See appeal book Page 43 Dr Geelan dentist
·See appeal book Page 121-124 Dr Jackson G.P.
·See appeal book Page 197-201 unintelligible bias during recess 17/09/10"
The assertion made by this ground appears to be that the Board has displayed bias because it accepted the position put forward by the PG at the hearing in preference to that of the appellant. In his oral argument, the appellant sought to re-agitate the issues which he had raised at the hearing before the Board. A review of the evidence does not suggest that the findings made by the Board were not open to it. There is nothing in the submissions put to this Court by the appellant which establishes bias on the part of the Board. This ground of appeal must fail.
Ground 12
This ground provides:
"As a result of the incompetence and bias exhibited by the Board throughout this application hearing and as a result of its co-authorship of the P.G. submission I submit to the Court that it would be unrewarding for the appellant to return to the Board to seek any form of justice in my son's guardianship.
· I therefore ask the court to exert its authority and return my son VJW to my custody and guardianship."
This ground of appeal seems more to be in the nature of a statement of what the appellant wishes the Court to do. The matters raised by this ground of appeal have already been referred to when dealing with earlier grounds and nothing new was raised in oral argument. Insofar as the appellant relies on this as a ground of appeal, it must fail.
Grounds 13 and 14
I do not pause to set out these grounds in full. They appear in the appellant's material under the heading of "In Summary". During the course of oral argument, the appellant accepted that the material contained in these paragraphs was not so much matters of complaint as far as the Board's decision was concerned, but was a statement of his position when he had the care of V and also a statement of certain background matters. In so far as it is necessary to deal with the material as if it contained grounds of appeal, the grounds should fail.
Ground 15
For the same reasons, I do not set out in full the material which appears in para15 in the grounds of appeal. It does not contain an articulation of asserted errors. It contains references to material in the appeal books upon which the appellant seeks to rely to effectively argue that the decision of the Board was wrong. The material does not require consideration as if it were a stand-alone ground of appeal.
Ground 16
Again, I have not set out this ground. It contains no asserted error and refers to some issues which have already been dealt with in the context of earlier grounds of appeal.
Conclusion
The appellant has failed to persuade the Court that any of the grounds of appeal which he has raised has any merit. In the circumstances, the appeal is refused.
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