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.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] SASC 125
Decision Date: 3 July 2020

CaseChat Overview and Summary

The applicant, KA, sought leave to appeal the decision of the President of the South Australian Civil and Administrative Tribunal (Tribunal), which was made on 12 November 2018. The Tribunal had revoked an advance care directive for KA's mother, NPP, and appointed a guardian and an administrator to manage her affairs. The President dismissed KA's application for an internal review of the Tribunal's decisions and KA now seeks leave to appeal. The legal issues before the court were whether the application for leave to appeal was made out of time and whether the appeal was reasonably arguable. The court found that the application was significantly out of time and that the appeal was not reasonably arguable. The court noted that KA had ample opportunity to present all relevant facts and arguments before the Tribunal. The court also found that the Tribunal had considered the relevant principles and evidence in making its decisions. The court concluded that the Tribunal had not failed to observe the principles set out in the Guardianship and Administration Act 1993 (SA) and that KA had not established that the Tribunal's decisions were unreasonable or based on incorrect assumptions. The court dismissed KA's application for leave to appeal. No further orders were made.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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”.

Ratio Decidendi

Legal Principle Established

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.