K, A v Public Trustee

[2020] SASCFC 104

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal in Private)

K, A v PUBLIC TRUSTEE

[2020] SASCFC 104

Judgment of The Full Court

(The Honourable Justice Stanley, The Honourable Justice Parker and The Honourable Justice Doyle)

2 November 2020

APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM SUPREME COURT - BY LEAVE OF COURT - GENERALLY

ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - STATUTORY APPEALS FROM ADMINISTRATIVE AUTHORITIES TO COURTS

This is an application for permission to appeal to the Full Court.  The applicant seeks to appeal from a decision of Bochner AJ who dismissed an application to appeal from a decision of the President of the South Australian Civil and Administrative Tribunal (the Tribunal). The applicant seeks to appeal against the orders of the President confirming the decision of the Tribunal to appoint the Public Advocate as guardian with special powers and the Public Trustee as full administrator over the applicant’s mother, owing to the intractable conflict that exists between the siblings.

Held:

1. There is no reason to doubt the judge’s conclusion that it was not reasonably arguable that the President’s finding was in error. The application is dismissed.

Guardianship and Administration Act 1993 (SA); South Australian Civil and Administrative Tribunal Act 2013 (SA) s 5, s 71, referred to.
Jackson v Lepp Investments Pty Ltd [2016] SASC 62, applied.
K, A v Public Trustee [2020] SASC 125, discussed.

K, A v PUBLIC TRUSTEE
[2020] SASCFC 104

Civil:  Permission to Appeal in Private

Full Court:      Stanley, Parker and Doyle JJ

1. THE COURT:     This is an application for permission to appeal to the Full Court.  The applicant seeks to appeal from a decision of Bochner AJ who dismissed an application to appeal from a decision of the President of the South Australian Civil and Administrative Tribunal (the Tribunal) on the grounds that the appeal was not reasonably arguable and was out of time.

2. This application for permission to appeal is also out of time.

3. The background to the application is that, until 1 February 2017, KA and his brother were substitute decisionmakers by way of an advance care directive for their mother.  On 1 February 2017 the Tribunal revoked the advance care directive on the application of the Public Advocate.  Subsequently, the Tribunal made a longer term order appointing the Public Advocate as full guardian of the mother. 

4. In January 2018 the mother’s daughter made an application to the Tribunal for the appointment of an administrator to administer the mother’s estate.  The application was heard at the same time as a review of the guardianship order.  On 15 February 2018 the Tribunal confirmed the full guardianship order and made a full administration order appointing the Public Trustee as the administrator of the whole of the mother’s estate.  On 19 July 2018 the Tribunal made an order conferring special powers on the Public Advocate, as the mother’s guardian, which included a power authorising it to direct where the mother resides. 

5. In July 2018 KA applied for an internal review of the Tribunal’s decision to confirm the appointment of the guardian and administrator, made on 15 February 2018, and of its decision to grant the Public Advocate special powers as the mother’s guardian, made on 19 July 2018.  The two reviews were heard together by the President of the Tribunal. 

6. On 12 November 2018 the President delivered her decision.  The President affirmed the decisions of the Tribunal the subject of the review.  She held that the decisions were not wrong when they were made, nor were they wrong at the time of the review application.

7. In her reasons the President noted that KA did not dispute the decision of the Tribunal that his mother was suffering an illness or disorder of the mind such that she required a substitute decisionmaker.  She noted the importance of ascertaining the mother’s wishes.  The President noted that, at the hearing on 19 July 2018, the mother believed at that time she was able to make her own decisions.  She appeared to be unaware that a guardian had been appointed as a substitute decisionmaker.  The President noted that a protected person’s wishes, as expressed after their decision-making capacity became impaired, may not be in their best interests or consistent with their wishes as stated before their decision-making capacity became impaired.  She held that it was important to ensure that any proposed appointee would manage carefully and independently any decision‑making process, including making decisions contrary to the expressed wishes of the protected person.

8. The President examined the reasons given by the Tribunal in the decisions under review.  She noted the Tribunal found there was a high degree of conflict between the mother’s children.  For that reason, the Tribunal had found that only an independent substitute decisionmaker who was neutral in that conflict would be suitable.  The Tribunal held that it “is and will remain totally unworkable for any of the children to be assisting the protected person in the management of her legal and financial affairs”. 

9. At the review hearing the mother was represented by an independent legal practitioner appointed by the Tribunal.  The practitioner interviewed the mother prior to the hearing to ascertain her wishes.  The practitioner stated that the mother continued to indicate that she was able to make her own decisions, live independently and manage her own affairs.  The practitioner submitted that the Tribunal had made the correct and preferable decision at the original hearing and there was no basis to change it. 

10. The President also heard submissions from KA.  She also heard submissions from KA’s siblings who did not support KA’s application.  Submissions were also made by the Public Advocate, the Department of Health and Aging and the Public Trustee.  The President had regard to the evidence before the Tribunal adduced from the mother’s general practitioners and the Director of Nursing at the residential care facility where she resided. 

11. The President concluded that, given the conflict between the siblings which required the appointment of an independent substitute decisionmaker, the decision made by the Tribunal was correct.  The President noted that no mechanism was proposed by KA for dealing with this conflict so as to allow appropriate decisions to be made for his mother.  He simply proposed that he be granted the power to make those decisions.

12. On the application for permission to appeal heard by Bochner AJ,[1] KA represented himself.  KA experienced some difficulty in identifying precisely the orders which he was seeking to appeal.  His ground of appeal was that the Tribunal breached the Guardianship and Administration Act 1993 (SA) (the Act) by failing to ascertain the true level of informal care given to his mother by him and also by failing to consult with his mother about her situation and case needs. He sought to have all of the Tribunal’s decisions set aside and guardianship and power of attorney in respect of his mother returned to him. In the course of the hearing, he relied on a short video of his mother, an affidavit and written submissions. He identified the Tribunal’s decisions of 16 February 2017 and 15 February 2018 as the decisions he wished to have set aside. The judge treated KA’s application as an application for leave to appeal from the decision of the President in relation to the decisions of 15 February 2018 and 19 July 2018. This was because there was no evidence before her of the required internal review of the 16 February 2017 decision having occurred. The decision of 15 February 2018 confirmed the decision made on 16 February 2017 and thus the 2017 decision was caught nonetheless.

    [1]    K, A v Public Trustee [2020] SASC 125.

13. The judge identified the complaints relied on by KA as being that there was no attempt made to consult with his mother when she was clearly capable of discussing her wishes;  the Tribunal failed to make any attempt to determine the level of informal care being received by her but was instead “fed a pack of lies” and never tried to determine the truth;  the Tribunal did not comply with the principles to be observed as set out in the Act;  and failed to determine the mother’s actual capacity to make her own decisions.

14. The judge referred to the appeals provision found in s 71 of the South Australian Civil and Administrative Tribunal Act 2013 (SA) (SACAT Act). She recognised that leave is required for all appeals and can only occur once an internal review has been conducted under s 70. She referred to the principles relevant to deciding whether to grant permission to appeal as set out in the judgment of this Court in Jackson v Lepp Investments Pty Ltd.[2] She correctly identified that in considering the application for permission she had to determine two questions:  first, whether an appeal is reasonably arguable;  and second, whether the subject matter is of sufficient substance to justify consideration. 

    [2] [2016] SASC 62.

15. The judge considered that KA’s complaint that no attempt was made to consult with his mother when she was clearly capable of discussing her wishes was not made out.  She held it was clear from the reasons for decision of the President that the mother’s wishes were considered on a number of occasions and in numerous different ways.  The judge held that it was clear that the mother was consulted as to her wishes both at the hearing in relation to the special powers application when she gave evidence to the Tribunal and at the review hearing when she was represented by her own Tribunal appointed lawyer who spent some time discussing her wishes with her.

16. The judge further held that it was not arguable that the Tribunal failed to make any attempt to determine the level of informal care received by the mother.  She considered it was clear that KA was given every opportunity at the hearing before the President and at the hearing in July 2018 to put all of the relevant facts concerning the level of informal care being received by his mother before the Tribunal for its consideration. 

17. The judge was unable to find it was reasonably arguable that the Tribunal failed to observe the principles set out in s 5 of the SACAT Act.  The President referred to those principles when setting out the wishes of the mother in the enduring power of guardianship, and also when she was considering the role of the substitute decisionmaker, and the criteria to be considered when appointing one.  The President took steps to ascertain the mother’s current wishes by considering the evidence that she had given at the hearing on 19 July 2018 and by ensuring that she was separately and independently represented by her own lawyer at the hearing before the President.  The President ensured that KA had adequate opportunity to make both oral and written submissions in relation to the adequacy of informal arrangements and those currently in place.  Finally, the President referred to the need to afford the mother the greatest personal autonomy consistent with her proper care and protection.

18. Finally, the judge concluded that it was not open to KA to seek a review of the determination of his mother’s actual capacity because this was not disputed on the internal review. Accordingly, s 71 of the SACAT Act precluded any appeal in relation to this finding.

19. This led the judge to conclude that KA had failed to establish that an appeal from the decision of the President was reasonably arguable.  Even though she considered that the subject matter of the appeal was of sufficient substance to justify consideration, she held it would not be in the interests of justice to grant permission where there was no arguable basis for the appeal to succeed.  Finally, the judge refused the application for an extension of time within which to institute the appeal as it was more than a year late and the mother had been living for more than a year in circumstances with established routines and relationships which KA seeks to overturn by his appeal.

20. The appeal grounds now sought to be agitated on appeal to the Full Court are:

    1Orders of SACAT of 1 February 2017 regarding guardianship, revoking both my brother Noel and my guardianship powers, apparently on the grounds of a family dispute.  I will be seeking to show that SACAT has significantly misunderstood any family dispute, and also that the actual dispute is entirely artificial, generated for the purpose of manipulating SACAY [sic].  Details in affidavit.

    2Orders of SACAT of 15 February 2018 regarding power of attorney, revoking my power of attorney, for no apparent reason, apart from clearing the way for the Office of Public Advocate’s decisions to be implemented without me standing in the Public Advocate’s way.

    3All subsequent SACAT and Office of Public Advocate decisions, on the basis of the illegitimacy of SACAT’s decisions due to serious breaches of the Guardian and Administration Act 1993, Part 1, s 5.  In particular, their failure to adhere to the principles in the Act, including the failure to properly ascertain the level of informal care being given to my mother, and indeed the active and strident refusal to allow me to even talk about this level of care.  Also, mum’s rights to be consulted about her care arrangements, and her right for decisions to be the least disruptive possible to her life.

21. In considering whether permission to appeal should be granted the overriding principle is always the interests of justice.  The ordinary approach is that permission will only be granted where an appeal is reasonably arguable and the subject matter is of sufficient substance to justify consideration.[3]

    [3]    Jackson v Lepp Investments Pty Ltd [2016] SASC 62 at [19].

22. The application for permission to appeal to the Full Court from the decision of Bochner AJ is supported by an affidavit of the applicant and a video of his mother.  The affidavit is a lengthy, repetitious and speculative document which nonetheless identifies the grounds which the applicant seeks to agitate before the Full Court if permission is granted.  The application for permission to appeal to the Full Court merely repeats the grounds for the application for permission to appeal from the President.  Central to the decision of the judge refusing permission to appeal was her conclusion that the President was correct in finding that the decisions of the Tribunal which KA seeks to overturn were necessary, and remain necessary, because of the intractable conflict that exists amongst the siblings.  As the President found, that makes it necessary for an independent person to make decisions about the mother’s care and living arrangements.  There is no reason to doubt the judge’s conclusion that it was not reasonably arguable that the President’s finding was in error.  KA contends that the conflict between the siblings is artificial.  That contention is belied by the contents of his affidavit which is replete with reference to the conflict between himself and his brother and sister.  There appears no reasonable argument that the conflict does not exist.  That conflict is critical to the impugned orders made by the Tribunal and is central to the reasons of the judge in refusing permission to appeal. For the reasons given by the judge, we are satisfied that KA’s grounds are not reasonably arguable.  In addition, the application is more than a year out of time.  Events have moved on and there must be genuine doubt as to whether it would be in the interests of the mother that there be any change in the arrangements under which she has been living for some time.  There is nothing in the contents of the video which would suggest that the appeal is reasonably arguable.  It is a short interview with the mother where she expresses a wish to live with KA or in a house near KA rather than in the nursing home where she currently resides.  Her preference in that regard does not render erroneous the impugned decisions of the Tribunal. 

23. In the circumstances we would refuse permission to appeal.