K, A v Public Trustee - [2020] SASC 125

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Permission to Appeal)
K, A v PUBLIC TRUSTEE
[2020] SASC 125
Judgment of The Honourable Auxiliary Justice Bochner
3 July 2020
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
This is an application for permission to appeal a decision of the President Member of the South Australian Civil and Administrative Tribunal – appeal out of time – appeal not reasonably arguable.
Held: application dismissed.
Guardianship and Administration Act 1993 (SA); South Australian Civil and Administrative Tribunal Act 2013 s 71(sa), referred to.
Jackson v Lepp Investments Pty Ltd [2016] SASC 62, considered.

K, A v PUBLIC TRUSTEE
[2020] SASC 125

The applicant, whom I shall refer to as KA, seeks leave to appeal from a decision of the South Australian Civil and Administrative Tribunal (the Tribunal). The decision that KA seeks to appeal was delivered on 12 November 2018. The Tribunal was constituted by the President of the Tribunal.
Background
Until 1 February 2017, KA and his brothers were the substitute decision‑makers, by way of an advance care directive, for their mother, whom I shall refer to as NPP. On 1 February 2017, the Tribunal revoked the advanced care directive on the application of the Public Advocate. The Public Advocate was appointed NPP’s guardian for a period of 21 days, at which time a further hearing was held to confirm the order. At the review hearing, the Tribunal made a longer term order appointing the Public Advocate as full guardian of NPP.
In January 2018, NPP’s daughter made an application to the Tribunal for the appointment of an administrator to administer NPP’s estate. This 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 NPP’s estate. On 19 July 2018, the Tribunal made an order conferring special powers on the Public Advocate, as NPP’s guardian, which included a power authorising it to direct where NPP resides.
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 NPP’s guardian special powers, made on 19 July 2018. The two reviews were heard together. The decision of the President was delivered on 12 November 2018.
The decision of the President
In her decision, delivered on 12 November 2018, the President commenced by outlining the nature of an internal review. She noted that permission was required for an application for internal review and that all applications for review should be instituted within one month of the making of the decision. She noted that KA’s application was significantly out of time. After considering the circumstances which led to the late filing of KA’s review application, the President extended the time within which the application for review could be brought.
The President then noted that the decision of the Tribunal, that NPP was suffering from an illness or disorder of the mind such that she required a substitute decision-maker, was not disputed by KA. She then outlined the principles to be observed when conducting an internal review. She outlined the guiding principles set out in section 5 of the Guardianship and Administration Act 1993 (SA) (“the Act”).
The President noted that the person’s wishes are considered as significant in the guiding principles. As a result, it was important to establish what NPP’s wishes were. She examined the directions made by NPP in an enduring power of guardianship instrument which she had executed in 2011. She also noted that at the hearing on 19 July 2018, NPP believed at that time that she was able to make her own decisions. She appeared to be unaware that a guardian had been appointed to make decisions on her behalf.
The President examined the role of a substitute decision-maker and the criteria that must be taken into account when determining whether one should be appointed. In this regard she referred to section 31 of the Act. She outlined the matters that the Tribunal may take into account, including the guiding principles in section 5 of the Act, whether there was or may be conflict between proposed joint appointees and whether there was conflict between a proposed appointee and anyone else in respect of whom the protected person would desire to have an ongoing relationship. She noted that it should be borne in mind that the protected person’s wishes as expressed after the decision-making capacity became impaired may not be in their best interests or consistent with their wishes stated before their decision-making capacity became impaired. She noted 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.
9 The President examined the reasons given by the Tribunal in the decisions under review and noted the Tribunal found that there was a high degree of conflict between NPP’s children. The Tribunal found that only an independent substitute decision-maker who was neutral to that conflict would be suitable for appointment. The Tribunal found “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”.
At the review hearing, NPP was represented by an independent legal practitioner, Ms Neudegg. Ms Neudegg interviewed NPP prior to the hearing to ascertain her wishes. At the review hearing, she relied on written submissions which were supplemented by some oral submissions. The President noted that NPP had, in fact, given evidence before the Tribunal on 19 July 2018, and set out, in her decision, the Tribunal’s summary of her evidence.
At the review hearing Ms Neudegg stated that NPP continued to indicate that she was able to make her own decisions, live independently and manage her own affairs. The President set out a lengthy extract from Mrs Neudegg’s account of her meeting with NPP.
Ms Neudegg’s evidence was that the Tribunal had made the correct and preferable decision at the original hearing and that there was no basis for changing it.
In addition to hearing evidence from Ms Neudegg, the President heard submissions, both written and oral, from KA. The President set out in some detail the submissions made by KA. She also outlined submissions made by KA’s siblings who were not supportive of KA’s application. Submissions were also made by the Public Advocate and Department of Health and Ageing, and the Public Trustee. The President noted that the Tribunal had also had the benefit of evidence from NPP’s general practitioner, the director of nursing at the residential care facility where NPP resides, and a representative from the Office of the Public Advocate.
The President found that the decision made by the Tribunal, that the conflict between the siblings was significant enough to require the appointment of an independent substitute decision-maker, was correct. Her Honour noted that the submissions provided by KA on the review hearing showed a conflictual relationship between himself and his siblings which was entrenched. She noted that no mechanism was proposed by KA for dealing with this conflict so as to allow appropriate decisions to be made for NPP.
The President found that the decisions under review were not wrong when they were made, nor were they wrong at the time of the review application. The decisions of the Tribunal were affirmed.
The appeal
KA now seeks leave to appeal. KA is representing himself. It is difficult to understand from his notice of appeal which decisions of the Tribunal he seeks to appeal. On the notice of appeal, where asked to provide the particulars of the judgment appealed from, he has inserted the dates 16 February 2017 and 15 February 2018, and when asked to specify the judicial officer appealed from, he has indicated Mr Rainsford.
Rather than specifying exactly the orders that he seeks to appeal, under the heading “Orders complained of”, he states:
All orders by SA Civil and Administrative Tribunal since January 2017, in relation to my mother [name omitted].
Under the heading “Orders sought”, he states:
·Cancellation of all decisions made by SACAT since January 2017 in relation to my mother, [name omitted].
·Restoration of [name omitted]’s property.
·Review of all monies received from [name omitted]’s account.
·Compensation for pain and suffering.
He relies on the following ground of appeal:
1. SA Civil and Administrative Tribunal breached the Guardianship and Administration Act 1993, by failing to ascertain the true level of informal care given to my mother by myself and also by failing to consult with her about her situation and case needs. As a result of these serious breaches of the law, all of SACAT decisions should be reversed and guardianship and power of attorney returned to me.
He then refers to a short video, an affidavit and another attachment which in effect comprises his written submissions. Here, he refers to the decisions made by the Tribunal on 16 February 2017 (the appointment of the Public Advocate as NPP’s guardian) and 15 February 2018 (the confirmation of the appointment of a guardian, and the appointment of the Public Trustee as NPP’s administrator) as those that he wishes to have set aside. He does not refer to the decision made on 19 July 2018, in relation to special powers, as a decision that he wishes to appeal, although this is caught in his statement that he is complaining of all orders made by the tribunal since January 2017. He also does not refer to the decision of the President.
I have treated KA’s application as an application for leave to appeal from the decision of the President, in relation to the decisions made on 15 February 2018 and 19 July 2018. This is for three reasons.
Firstly, I do not know whether KA has sought an internal review of the decision of the Tribunal made on 16 February 2017. Pursuant to section 71(2a) of the South Australian Civil and Administrative Tribunal Act 2013 (“the SACAT Act”), an appeal from a decision of the Tribunal in the exercise of its original jurisdiction may only be commenced after an internal review has been conducted. As KA has not put any material before me to indicate that such a review has occurred, I have assumed that it has not. Thus, an appeal to the Supreme Court of the decision made on 16 February 2017, is not available to KA.
Secondly, the decision of 15 February 2018 did two things. It confirmed the decision made on 16 February 2017, to appoint the Public Advocate as guardian of NPP, and it also made a full administration order in relation to NPP’s estate, by appointing the Public Trustee as her administrator. Thus, the decision of 16 February 2017 is caught in the decision of 15 February 2018.
Thirdly, KA has sought internal review of the decision made on 15 February 2018; thus, it is prima facie open to him to seek leave to appeal to the Supreme Court in relation to that order.
I note that KA does not specifically seek to appeal from the decision made on 19 July 2018, to grant the Public Advocate special powers. However, if he is successful in his appeal of the decision made on 15 February 2018, this will necessarily lead to the vacating of the order made on 19 July 2018.
While the grounds of appeal relied on by KA are somewhat vague, I have been able to distil the following complaints from his written material. He says that no attempt was made to consult with NPP 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 NPP but instead was “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. The Tribunal failed to determine NPP’s actual capacity to make her own decisions.
For the purpose of the appeal KA relied on his affidavit filed on 13 March 2020, an affidavit dated 21 April 2020 which appeared not to be sworn despite the fact that it was referred to as an affidavit, a further document entitled affidavit 21 April 2020 – two page summary, and a further document entitled affidavit 21 April 2020 – waiver of 28 day appeal time limit. These documents largely contain the same information relied on by KA. They set out a history of conflict between members of the family going back approximately 30 years and particularly since the death of KA’s father in 2008. The documents are discursive and contain a litany of complaints made against KA’s siblings and various entities involved in NPP’s care. The material contained in the documents is of little probative value as it is based largely on assertion and anecdote. I accept that it contains KA’s recollection and interpretation of what has occurred over the years.
The statutory framework
The ability to appeal from a decision of the Tribunal is dealt with in section 71 of the SACAT Act. The Act relevantly provides:
71—Appeals
…
(2)An appeal under this section is only by leave of the Supreme Court (but this principle may be displaced or modified by the provisions of a relevant Act).
(2a)   Without limiting subsection (2), an appeal against a decision of the Tribunal in the exercise of its original jurisdiction, or in a case where the Tribunal is constituted by a registrar or other member of the staff of the Tribunal, may not be instituted under this section unless or until a review of the decision has been conducted under section 70.
…
(3)An appeal must be instituted within 1 month of the making of the decision to which the appeal relates but the Supreme Court may, if it is satisfied that it is just and reasonable in the circumstances to do so, dispense with the requirement that the appeal should be instituted within that period (even if the time for instituting the appeal has expired).
(3a)   An appeal under this section will be by way of rehearing.
(3b)   The Supreme Court may, in conducting an appeal, draw inferences of fact from evidence or material before the Tribunal and may, as it thinks fit, allow further evidence or material to be presented to it.
(4)     The Supreme Court may, on an appeal under this section—
(a)     affirm the decision appealed against; or
(b)     vary the decision appealed against; or
(c)     set aside the decision appealed against and, if it thinks fit, return the matter to the Tribunal for reconsideration in accordance with any directions that the Court considers appropriate.
(5)The Supreme Court may, on an appeal, make any interim, ancillary or consequential order that the Court considers appropriate.
…
Thus leave is required for all appeals and only once an internal review has been conducted under section 70. Any appeal must be commenced within one month of the making of the decision to which the appeal relates. An extension of time may be granted. KA therefore requires leave to bring this appeal. He also requires an extension of time as the decision which he seeks to appeal was made well in excess of one month ago.
The question of permission to appeal was dealt with by the honourable Justice Parker in the matter of Jackson v Lepp Investments Pty Ltd.[1] He said, at [19]:
In deciding whether to grant permission to appeal from SACAT to this Court I consider that the ordinary principles applied when the Court decides whether or not to grant permission for a civil appeal should be followed. The over-riding 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. A failure of the first-instance decision maker to give adequate reasons will require the grant of permission.
(citations omitted)
[1] [2016] SASC 62.
I must therefore determine two questions:
1Whether an appeal is reasonably arguable; and
2Whether the subject matter is of sufficient substance to justify consideration.
I will consider these questions before I turn to consider whether an extension of time should be granted.
Is an appeal reasonably arguable?
In answering this question, I will examine the complaints made by KA which I outlined above.
No attempt was made to consult with NPP when she was clearly capable of discussing her wishes.
KA complains that no attempt was made to consult with NPP in determining where she should live and who should be granted guardianship of her.
I am of the view that this complaint cannot be made out. It is clear from the decision of the President, that the wishes of NPP were considered on a number of occasions and in numerous different ways.
At [27] of her decision, the President sets out NPP’s wishes as recorded by her in her enduring power of guardianship instrument which she had executed on 22 January 2011. The President expressed the view that in determining what is in her best interests for her care and protection the wishes that she expressed in this instrument must be borne in mind. She said that in making any such decision, consideration must be made of her views now, her wishes expressed in this instrument, and the views of her children and medical experts.[2]
[2] [2018] SACAT 48 at [28].
The President then considered the role and function of substitute decision‑makers and the criteria which must be considered when determining who should be appointed to this role. She said, at [32], that in determining whom should be appointed it was relevant to take into consideration whether the proposed appointee would follow the guiding principles set out in section 5 of the Act.
From [46] onwards, the President described the review hearing. She said that NPP did not appear at the review hearing but that she was separately represented by an independent lawyer, Ms Neudegg. She was interviewed by Ms Neudegg to ascertain what her wishes were now and to assist the Tribunal in making its decision. Ms Neudegg provided written submissions and also made oral submissions at the hearing. The President further noted that NPP did, personally, give evidence at the hearing in relation to the special powers application on 19 July 2018. In relation to this evidence, at [47], the President said the following:
At the hearing in relation to the special powers application on 19 July 2018, NPP’s evidence was taken by the Tribunal in the absence of the other parties. The Tribunal summarised her evidence as follows:
During our brief conversation with NPP, she seemed relaxed and largely oblivious to what the hearing was about. She stated she was unaware of any conflict or disagreement between her family members and was not even aware that Public Advocate had been appointed as her guardian. She expressed no concern about being present during the hearing, despite assertions made by family members that she feared the presence of certain family members in the room.
When asked about her current living arrangements she told us that she was still living in her family home at Edwardstown. Despite prompting, she was unable to recall that she was actually residing at Regis nursing home, telling us that she had woken up at her Edwardstown home this morning and brought to the hearing. This simply was not the case, with NPP being collected from Regis Nursing Home on the day of this hearing. NPP was engaging and pleasant during the conversation and expressed no concern as to any family members present.

The President also set out in detail the submissions made by Ms Neudegg following her interview with NPP. She explained in detail the nature and the circumstances of Ms Neudegg’s interview with NPP and set out an extract of that account. She set out Ms Neudegg’s concern that if KA were appointed as NPP’s guardian, the conflict between him and his siblings created a risk that NPP’s wishes that her decisions should be made on her behalf with the input of all of her children would not be fulfilled.[3]
[3] [2018] SACAT 48 at [50].
It is clear from this that NPP 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 lawyer who spent some time discussing her wishes with her. As a result I am of the view that it is not reasonably arguable that the Tribunal failed to discuss with NPP her wishes.
The Tribunal failed to make any attempt to determine the level of informal care being received by NPP but instead was “fed a pack of lies” and never tried to determine the truth.
I am of the view that it is not arguable that the Tribunal failed to make any attempt to determine the level of informal care being received by NPP. It is clear that KA made oral submissions at the hearing before the President and that significant assistance was provided to him in addressing the questions that the Tribunal considered relevant. He also provided written submissions to the Tribunal which were dated 30 July 2018. It became clear that at least one of the submissions made by KA was based on speculation and was later proved to be incorrect. I am satisfied that KA had every opportunity to put all of the appropriate facts before the Tribunal for their consideration.
The Tribunal did not comply with the principles to be observed as set out in the Guardianship and Administration Act.
I assume that in referring to the principles to be observed, KA is referring to the principles set out in section 5 of the Act. For completeness, I set out section 5 here:
Where a guardian, an administrator, the Public Advocate, the Tribunal or any court or other person, body or authority makes any decision or order in relation to a person or a person's estate pursuant to this Act or pursuant to powers conferred by or under this Act—
(a)consideration (and this will be the paramount consideration) must be given to what would, in the opinion of the decision maker, be the wishes of the person in the matter if he or she were not mentally incapacitated, but only so far as there is reasonably ascertainable evidence on which to base such an opinion; and
(b)the present wishes of the person should, unless it is not possible or reasonably practicable to do so, be sought in respect of the matter and consideration must be given to those wishes; and
(c)consideration must, in the case of the making or affirming of a guardianship or administration order, be given to the adequacy of existing informal arrangements for the care of the person or the management of his or her financial affairs and to the desirability of not disturbing those arrangements; and
(d)the decision or order made must be the one that is the least restrictive of the person's rights and personal autonomy as is consistent with his or her proper care and protection.
In relation to those principles, the President said:
These principles are to be observed by the Tribunal in the making of its decisions. Further, the same principles must be observed by an appointed guardian or administrator making decisions on behalf of a protected person.[4]
[4] [2018] SACAT 48.
She referred to the principles again when setting out the wishes of NPP in the enduring power of guardianship instrument, and also when she was considering the role of a substitute decision maker, and the criteria to be considered when appointing one.
The President endeavoured to ascertain NPP’s current wishes, by considering the evidence that she gave at the hearing on 19 July 2018, and by ensuring that NPP was separately and independently represented at the hearing on 6 November 2018, and taking into consideration the oral and written submissions of her lawyer.
In relation to the adequacy of informal arrangements, the President considered the arrangements currently in place, and ensured that KA had adequate opportunity to make both oral and written submissions.
As to the final requirement set out in section 5, the President specifically referred to the need to afford NPP the greatest personal autonomy consistent with her proper care and protection, at [74] (incorrectly numbered [39]).
In these circumstances, I am unable to find that it is reasonably arguable that the Tribunal failed to observe the principles set out in the Act.
The Tribunal failed to determine NPP’s actual capacity to make her own decisions.
I am of the view that it is not open to KA to seek review of the determination of NPP actual capacity. This is on the basis of the following statement in the judgment of the President:
The Tribunal’s finding that [NPP] is suffering an illness or disorder of the mind such that she requires a substitute decision-maker, being a prerequisite for the appointment of a guardian and an administrator, was not disputed on the internal review.[5]
(Citations omitted)
[5] [2018] SASC 48 at [25].
As this finding was not disputed as part of the review process, it is not open to KA to appeal this finding under section 71 of the SACAT Act.
As a result of my findings, I conclude that KA has failed to establish that an appeal from the decision of the President is reasonably arguable. Thus, he has fallen at the first hurdle of his leave application. While it is not necessary for me to consider whether the subject matter is of sufficient substance to justify consideration, I am tentatively of the view that it is. However, as there is no arguable basis for an appeal, it would not be in the interests of justice to grant leave. Finally, I note that KA has commenced this application more than a year outside the time limit prescribed by the SACAT Act. KA’s reason for not applying for leave earlier is not compelling. He says that he wanted to wait to see if the arrangements for his mother were acceptable. This is the same reason that he gave for filing his review application nearly six months late. In this case, I do not consider that it is appropriate to grant an extension of time to commence the application. NPP has been living for more than a year in the circumstances in relation to which KA now seeks to appeal. She will have established routines in the residential care facility in which she resides, and will have developed relationships with staff there. On the basis of the material before me, there is not sufficient reason to disturb these arrangements. As a result, if I were required to decide this question, I would not be inclined to grant an extension of time.
KA’s application must be dismissed.