JT and Anor v Protective Commissioner & Ors

[2004] NSWADTAP 13

Appeal Panel - External

CITATION:	JT and Anor v Protective Commissioner & Ors [2004] NSWADTAP 13
PARTIES:	APPELLANT JT and JV FIRST RESPONDENT Protective Commissioner SECOND RESPONDENT JW THIRD RESPONDENT JS FOURTH RESPONDENT JU FIFTH RESPONDENT Guardianship Tribunal
FILE NUMBER:	038017
HEARING DATES:	19/04/2004
SUBMISSIONS CLOSED:	04/19/2004
DATE OF DECISION:	04/30/2004
DECISION UNDER APPEAL:	Guardianship Tribunal 2003/5218
BEFORE:	Hennessy N - Magistrate (Deputy President); Innes G - Judicial Member; Wunsch A - Non Judical Member
CATCHWORDS:	Financial management order - making - Jurisdicition - effect of irregularity - Leave to appeal on other grounds - No evidence - Statutory interpretation
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	C/27693 2003/5218
DATE OF DECISION UNDER APPEAL:	11/19/2003
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Administrative Decisions Tribunal Rules (Transitional) Regulation 1998 Guardianship Act 1987 Privacy and Personal Information Protection Act 1998 Protected Estates Act 1983
CASES CITED:	Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 149 K v K [2000] NSWSC 1052 Kioa v West (1985) 159 CLR 550 Mahon v Air New Zealand Ltd [1984] AC 808 Re R [2000] NSWSC 886 Re Refugee Tribunal; ex parte Aala (2000) 75 ALJR 52 S v S [2001] NSWSC 146
REPRESENTATION:	APPELLANTS In person FIRST RESPONDENT No appearance SECOND RESPONDENT In person THIRD RESPONDENT Ms Coates, solicitor FOURTH RESPONDENT No appearance FIFTH RESPONDENT E Cho, legal officer
ORDERS:	The orders of the Guardianship Tribunal made on 19 November 2003 concerning JS are affirmed.

Background

1 JS is a 77 year old man with Alzheimer’s disease who lives with his son, JT and his daughter in law, JV. On 19 November 2003 the Guardianship Tribunal (the Tribunal) made an order that JS’s estate be subject to the management of the Protective Commissioner. The application for that order was made by JS’s son in law, JW. JS’s son and daughter in law, JT and JV, appealed to the Appeal Panel of the Administrative Decisions Tribunal (ADT) against the Guardianship Tribunal’s decision.

2 Under s 25E(1) of the Guardianship Act 1987, the Tribunal may “order that the estate of a person be subject to management under the Protected Estates Act 1983.” Section 25G of the Guardianship Act 1987 sets out the circumstances in which the Tribunal may make a financial management order.

The Tribunal may make a financial management order in respect of a person only if the Tribunal has considered the person’s capability to manage his or her own affairs and is satisfied that:

(a) the person is not capable of managing those affairs, and

(b) there is a need for another person to manage those affairs on the person’s behalf, and

(c) it is in the person’s best interests that the order be made.

3 Pursuant to s 25M, if the Tribunal makes a financial management order it must either “appoint a suitable person as manager of that estate”, or “commit the management of that estate to the Protective Commissioner.”

Parties

4 The parties to proceedings before an Appeal Panel include the appellant and anyone else who was a party to the proceedings before the Tribunal. (Section 67(2A)(d) of the Administrative Decisions Tribunal Act 1987 (ADT Act) and rule 41A(1) of Schedule 1 to the Administrative Decisions Tribunal Rules (Transitional) Regulation 1998 – “the Regulation”.) While the Protective Commissioner is also a party to the appeal, he chose not to play any role in the proceedings. The other parties to the appeal proceedings are:

· the appellants - JT and JV (JS’s son and daughter in law);

· the subject of the order - JS;

· the original applicant before the Tribunal - JW (JS’s son in law);

· JU who holds a power of attorney in relation to JS; and

· the Tribunal.

5 The Guardianship Tribunal is entitled to be a party to the proceedings pursuant to s 67(2B) of the ADT Act. The Tribunal elected to be a party and the legal officer, Ms Cho, provided written submissions but was unable to be present at the hearing.

6 The Appeal Panel appointed The Aged Care Rights Service (TARS) to represent JS in these proceedings pursuant to s 71(4A) of the ADT Act.

Appeal Panel’s jurisdiction

7 Section 67A(1)(e) of the Guardianship Act 1987 gives a party the right to appeal to the Appeal Panel of the ADT against a decision of the Tribunal made under s 25E that the estate of a person be subject to management. Under s 25M if the Tribunal makes a financial management order in respect of the estate of a person, it may either appoint a suitable person as manager of that estate or commit the management of that estate to the Protective Commissioner. Section 67A does not give a party an express right to appeal against the appointment of a particular manager. However, that right is implied in the right of appeal against the decision to make a financial manager order because such an order must include the appointment of a manager.

Scope of appeal

8 An appeal cannot be made in relation to the merits of the Tribunal’s decision unless the Appeal Panel gives leave. Under s 118B of the ADT Act:

(1) An external appeal may be made:

(a) as of right, on any question of law, or

(b) by leave of the Appeal Panel hearing the appeal, on any other grounds.

9 The hearing on 19 April 2004 was for the purpose of determining whether a question of law had been identified and, if so, whether an error of law had been established. The appellants also applied for leave to appeal against the merits of the Tribunal’s decision.

Grounds of Appeal

10 Introduction. On the basis of the appellants’ Notice of Appeal, discussions at two case conferences and oral submissions at the hearing, the grounds of appeal can be summarised as follows:

· the Tribunal breached privacy legislation;

· the applicant before the Tribunal failed to lodge a new application form when withdrawing as proposed financial manager; and

· the Tribunal did not have sufficient evidence to make its findings on incapacity.

11 During the course of a preliminary conference before the Appeal Panel, the appellants mentioned the fact that they did not receive some documentary material relied on by the Tribunal and received other material on the morning of the hearing. However one of the appellants, JT, made it clear during the course of the hearing that he did not rely on any breach of procedural fairness in relation to the provision, or failure to provide, documentary material.

Breach of privacy.

12 The appellants alleged that the Tribunal breached the Privacy and Personal Information Protection Act 1998 in obtaining bank statements belonging to JS. According to the appellants the Tribunal did not have JS’s permission to obtain those statements and had no right to do so. The parties agreed that JW, JS’s son in law who was the applicant before the Tribunal, and JW’s wife, provided the Tribunal with the bank statements.

13 Under s 55(1) of the Guardianship Act 1987, the Tribunal “may inform itself on any matter in such manner as it thinks fit.” That provision allows the Tribunal to take into account relevant documentary material provided by a party. A party is entitled to produce documents and exhibits to the Tribunal pursuant to s 59.

14 Furthermore, pursuant to s 6(1) of the Privacy and Personal Information Protection Act 1998 the Tribunal is not bound by the provisions of that Act in relation to the manner in which it exercises its judicial functions. Consequently, although the appellants have identified a question of law, the Tribunal’s consideration of the bank statements did not involve any legal error.

Failure to lodge a new application form.

15 The appellants submitted that the applicant before the Tribunal, JW, should have completed a fresh application form when he decided that he did not wish to put himself forward as a possible financial manager of JS’s estate. JW denied that he ever put himself forward as a possible financial manager for his father in law. On the application form there is a section on page 6 entitled “If you have applied to have a financial manager appointed – who do you suggest for the role of financial manager?” JW ticked the box headed “Yourself” and the box headed “Protective Commissioner”. He then inserted his name, address and other contact details. At the bottom of the page beside an asterisk, he wrote “Protective Commissioner would be my elect”. According to JW he indicated in the application form that he wanted the Protective Commissioner to manage JS’s estate. The appellant JT, told the Appeal Panel that it was not until half way through the hearing that he realised that JW was no longer putting his name forward as a potential financial manager.

16 The initial question of fact is whether, based on an objective assessment of the application form, the appellants were justified in assuming that JW was putting himself forward as a possible financial manager. Having examined the form, we find that JW’s first preference was that the Protective Commissioner be appointed as his father-in-laws’ financial manager. That much is clear from the fact that although two boxes were ticked, JW added a hand written notation to the effect that the Protective Commissioner would be his “elect” – presumably his nominee. Nevertheless by ticking the box headed “Yourself” the inference is open that JW was willing to take on the role of financial manager. The appellants did not become aware of the fact that JW was not willing to do so until after the hearing had commenced.

17 As the Tribunal’s submission points out, proceedings are to be conducted “with as little formality and legal technicality and form as the circumstances of the case permit.” (Guardianship Act 1987 s 55(2).) This direction must mean that any alleged defect as to “form” does not render an application a nullity, as long as the rules of procedural fairness have not been breached. The appellants did not submit expressly that they had been denied procedural fairness because of the late notice of the change to the application. However, given that they were not legally represented, we find that it is implicit in their ground of appeal that the failure to lodge a new form disadvantaged them. That disadvantage was that they were not told that JW was not putting himself forward as a possible financial manger until after the hearing had commenced.

18 In order to obtain the benefit of the rules of procedural fairness, a person’s “interests, rights or legitimate expectations” must be affected. (Kioa v West (1985) 159 CLR 550 per Mason J at 584.) The appellants’ fundamental objection to the Tribunal’s decision was the finding that JS was not capable of managing his own affairs. Neither of the appellants put themselves forward as possible financial managers, either before or during the hearing. It can also be assumed, given the history of conflict among family members, that the appellants would have opposed JW being appointed as JS’s financial manager. In those circumstances, the fact that the Protective Commissioner was the only available financial manager did not affect the appellants’ rights, interests or legitimate expectations. Once the Tribunal had found that the pre-requisites to the making of a financial manager order were met, it was obliged to appoint a financial manager. The Protective Commissioner was the only option.

19 For these reasons, no error of law has been demonstrated in relation to JW’s failure to lodge a fresh application form. Nor does the fact that the appellants were not aware, until the hearing had commenced, that JW did not wish to nominate himself as a possible financial manager, constitute a breach of procedural fairness.

Insufficient evidence to make its findings.

20 In relation to the Tribunal’s finding pursuant to s 25E(1)(a) that JS was not capable of managing his own affairs, the appellants submitted that the Tribunal erred by not contacting Dr Ng or Mr Fitton during the course of the proceedings to obtain oral evidence from them. The Investigation Report prepared by the Tribunal’s Senior Investigation Officer records that Dr Ng was JS’s general practitioner and Mr Fitton was the solicitor involved when a power of attorney was appointed for JS in 2001. He also acted for JS when his property was sold.

21 The relevant evidence in relation to the question of whether JS had capacity was:

· a report of Dr E Ghaly, general practitioner, dated 17 September 2001;

· a report of Dr Ng, JS’s current general practitioner, dated 21 September 2003;

· an Aged Care Assessment Team (ACAT) Form dated 16 September 2003; and

· the Tribunal's own questioning of JS in the absence of the other parties.

22 Dr E Ghaly’s report, which was two years old by the time of the Tribunal hearing, stated that:

I referred (JS) to Dr Ross Jeremy (a consultant physician) for a full assessment regarding his mental status.

After thorough examinations, (JS) was found to suffer from Alzheimer’s disease, however he seems to understand the making of a will. Therefore in my opinion (JS) is mentally competent and capable of doing so.

23 Dr R Ng, JS’s general practitioner at the time of the hearing, stated in his report of 21 September 2003 that:

I am happy that (JS) is mentally aware enough to have decided to sell his house ....He is not pressured to do so.

24 The ACAT Assessment is primarily a “tick the box” format. Under the heading “Cognitive Behaviour/Psychological Aspects” a registered nurse recorded, among other things, that JS always exhibits short term memory loss and regularly exhibits confusion and disorientation in time, place and in relation to other people. The Tribunal’s questioning of JS was summarised in its reasons for decision at page 4. Those questions included queries about JS’s existing accommodation arrangements, the sale price of his house and his level of income. On the basis of all the evidence, the Tribunal concluded that JS was incapable of managing his financial affairs.

25 Three issues arise:

· Did the Tribunal make an error of law in failing to telephone Dr Ng to obtain oral evidence from him?

· Did the Tribunal make an error of law in failing to telephone Mr Fitton to obtain oral evidence from him?

· Did the Tribunal err in any way in the manner in which it came to the conclusion that JS lacked capacity?

26 A party is entitled, pursuant to s 59 of the Guardianship Act 1987, to call and examine a witness. No party called Dr Ng or Mr Fitton. Given that the Tribunal “may inform itself on any matter in such manner as it thinks fit” it has no legal obligation to obtain specific evidence or to ask the author of documentary evidence to expand on that evidence. While it would have been prudent to question Dr Ng before impliedly rejecting his evidence, the Tribunal did not make a legal error in failing to do so. Similarly, Mr Fitton may have been able to give relevant evidence in relation to JS’s capacity but the Tribunal did not make a legal mistake in choosing not to obtain evidence from him.

27 The Tribunal is legally obliged to make findings of fact based on logically probative evidence. The classic statement of the law on when a finding of fact can constitute an error of law was made by the Court of Appeal in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 149 per Glass JA with whom Samuels JA agreed at 155-156:

To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of a jury is vitiated in this way, it will be set aside because it is wrong in fact.

28 This is sometimes called the “no evidence” rule and is often regarded as an element of procedural fairness. In this case, the Tribunal had before it documentary evidence from general practitioners that two years previously JS was capable of understanding the effect of making a will and that recently he was mentally aware enough to have decided to sell his house. These reports provide some evidence of JS’s capacity to manage his own affairs. The assessment from a registered nurse as part of an ACAT assessment of the degree to which JS’s cognitive behaviour and psychological well-being is impaired does not assess capacity directly.

29 Pursuant to s 49 and s 51 of the Guardianship Act 1987, the Tribunal must sit with at least three members comprising a legal practitioner of at least 7 years standing, a person with experience in assessing or treating persons who may be the subject of Tribunal orders and a person who has experience with such persons. Pursuant to s 55(1) of the Guardianship Act 1987, those members are entitled to inform themselves on any matter in such manner as they see fit. That includes asking questions of parties or witnesses, just as the Tribunal members did in this case. Given that there was no direct external evidence of incapacity, the Tribunal must have relied exclusively on its own assessment of JS’s capacity and disregarded the evidence, such as it was, of the general practitioners.

30 The question is whether the Tribunal’s finding in relation to JS’s capacity was based on “no evidence” or was contrary to the overwhelming weight of evidence. The assessment by the general practitioners related to isolated transactions involving the preparation of a will and the sale of a house. While it would have been prudent for the Tribunal to explain why it rejected that evidence of capacity in coming to a contrary view, it cannot be said that the Tribunal’s finding was based on “no evidence” or was contrary to the overwhelming weight of evidence. Nor did the Tribunal err by failing to put directly to JS, or the other parties, the fact that it had formed a view that JS lacked capacity on the basis of JS’s answers to various questions. As McHugh J said in Re Refugee Tribunal; ex parte Aala (2000) 75 ALJR 52 at 73, there is no need to do so if the risk of an adverse finding “necessarily inheres” in the issues to be decided:

One of the fundamental rules of the fair hearing doctrine is that a decision-maker should not make an adverse finding relevant to a person's rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided. It is a corollary of the warning rule that a person who might be affected by the finding should also be given the opportunity to adduce evidence or make submissions rebutting the potential adverse finding ( Mahon v Air New Zealand Ltd [1984] AC 808 at 820-821.) [emphasis added]

31 For these reasons, the appellants have failed to persuade the Appeal Panel that the Tribunal made any error of law on any of the grounds raised by them.

Appeal on the merits

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 interpret 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.

33 We have found no problem with the Tribunal’s ultimate finding of fact in relation to incapacity. The fact that the Tribunal did not attempt to justify that finding in the light of contrary evidence is not a flaw which relates to the fact finding process. No question of administration or the applicability of policy arose for consideration in this case. Although the appellants disagree with the Tribunal’s decision, there is nothing from either a procedural or substantive point of view that persuades us that we should grant leave to review the merits of the decision.

Orders

34 The orders of the Guardianship Tribunal made on 19 November 2003 concerning JS are affirmed.