KA v Public Guardian & Ors

[2004] NSWADTAP 25

Appeal Panel - External

CITATION:	KA v Public Guardian & Ors [2004] NSWADTAP 25
PARTIES:	APPLICANT KA FIRST RESPONDENT Public Guardian SECOND RESPONDENT Protective Commissioner THIRD RESPONDENT Pauline Barber FOURTH RESPONDENT KC FIFTH RESPONDENT Guardianship Tribunal
FILE NUMBER:	048002
HEARING DATES:	19/05/2004
SUBMISSIONS CLOSED:	05/19/2004
DATE OF DECISION:	06/25/2004
DECISION UNDER APPEAL:	Guardianship Tribunal
BEFORE:	Hennessy N - Magistrate (Deputy President); Britton A - Judicial Member; Field B - Non Judicial Member
CATCHWORDS:	Bias - Financial management order - making - Guardianship order - making - Leave to appeal on other grounds - Opportunity to respond to adverse evidence - Procedural fairness
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	2003/5157, 2003/5158, 2003/5160
DATE OF DECISION UNDER APPEAL:	12/08/2003
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Administrative Decisions Tribunal Rules (Transitional) Regulation 1998 Guardianship Act 1987
CASES CITED:	R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13; Kioa v West (1985) 159 CLR 550; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 75 ALJR 277; GM v Guardianship Tribunal & Ors [2003] NSWADTAP 59; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; Johns v Australian Securities Commission (1993) 178 CLR 408; Annetts v McCann (1990) 170 CLR 596; Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247; Re Pergamon Press Ltd [1971] CH 388; Ansell v Wells (1982) 43 ALR 41; Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs [2000] FCA 113
REPRESENTATION:	APPLICANT In Person FIRST, SECOND AND FOURTH RESPONDENTS No Appearance THIRD RESPONDENT A Johnson, solicitor FIFTH RESPONDENT E Cho, solicitor
ORDERS:	1. The appellant’s application for leave to appeal against the merits of the Guardianship Tribunal’s decision is refused.; 2. The appeal is dismissed.

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.

Section 126 provides

(1A) This section applies only to the following:


(a) proceedings in the Community Services Division of the Tribunal,

(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,

(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,

(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983

(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.


(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:

(a) who appears as a witness before the Tribunal in any proceedings, or

(b) to whom any proceedings before the Tribunal relate, or

(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,


whether before or after the proceedings are disposed of.

Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.

(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.

(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Introduction

1 KC is a twenty-one year old man who sustained a severe brain injury on 31 August 2003. He was originally admitted to the Nepean Hospital but was later transferred to Westmead Hospital. He will probably remain there for several more months. This is an appeal by KC’s father, KA, against two decisions of the Guardianship Tribunal. The first decision, made on 8 December 2003, was that the Public Guardian be appointed for 12 months as KC’s guardian to make decisions in relation to accommodation, health care, medical and dental consent and other services. The second decision, also made on 8 December 2003, was to appoint the Protective Commissioner as KA’s financial manager for 12 months. KA agreed that his son has a disability and needs a guardian and a financial manager. The only issue in dispute before the Guardianship Tribunal was who that guardian and financial manager should be. KA submitted that he and his wife should be KC’s guardian and financial manager, rather than the Public Guardian and the Protective Commissioner respectively.

Jurisdiction

2 The Appeal Panel's jurisdiction to hear external appeals comes from s 67A of the Guardianship Act 1987 (the Act) and s 118A of the Administrative Decisions Tribunal Act 1997 (ADT Act). An external appeal may be made as of right on any question of law or by leave on any other ground. (Sections 118B(1) of the ADT Act.) KA appealed on questions of law and sought leave to appeal against the merits of both decisions.

Parties and representation

3 KA applied for guardianship on 3 October 2003 following pressure, he says, from staff at Nepean Hospital where KC was an inpatient. On 17 October 2003, Pauline Barber, a social worker with the Nepean Hospital, also applied for a guardianship order as well as a financial management order in relation to KC. The Guardianship Tribunal joined KA as a party to Ms Barber’s financial management application at his request. KA’s younger son also attended the Guardianship Tribunal hearing although he was not a party to those proceedings.

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 ADT Act and rule 41A(1) of Schedule 1 to the Administrative Decisions Tribunal Rules (Transitional) Regulation 1998 - "the Regulation".)

5 KA appeared before the Appeal Panel without legal representation, although he had apparently applied for legal aid. KA told the Appeal Panel that he thought it was unfair that he did not have legal representation. Ms Barber was represented by the Crown Solicitor’s Office. The Protective Commissioner and the Public Guardian are also parties to the appeal, but both chose not to play any role in the proceedings. The Guardianship Tribunal elected to be a party. Ms Cho represented the Tribunal. In accordance with the principles in R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 at 35, the Guardianship Tribunal’s role is limited to making submissions in relation to the powers and procedure of the Tribunal. To the extent that the Guardianship Tribunal’s submissions went beyond those matters we have not taken them into account.

6 KA was not present at the hearing before the Guardianship Tribunal, nor was he legally represented in those proceedings. Given the fact that the issues in dispute are, at least initially, confined to questions of law relating to the Guardianship Tribunal’s procedures and conduct prior to and during the hearing, the Appeal Panel decided not to appoint a separate representative for KC. If leave is granted to extend the appeal to the merits of the Guardianship Tribunal’s decision then the Appeal Panel will consider appointing a separate representative for KC pursuant to s 71(4) of the ADT Act.

Grounds of Appeal

7 The grounds of appeal were as follows:

1. The Guardianship Tribunal failed to assist KA either by providing legal representation or adjourning the matter so that he could obtain legal representation.

2. The Guardianship Tribunal denied KA and his younger son procedural fairness because:

a) KA was not given an adequate opportunity to be heard;

b) KA’s younger son was not given an adequate opportunity to be heard;

c) KA was not given sufficient opportunity to read and respond to the material in the Investigation Report to the Guardianship Tribunal prepared by Louise Smith;

d) KA was not shown copies of documents on which the Guardianship Tribunal relied prior to the hearing and was therefore not given an adequate opportunity to address any adverse or incorrect information in those documents. These documents were:

· Letter to the Guardianship Tribunal from Yasmin Jansa, Katoomba Youth Refuge dated 10 November 2003;

· Intake forms dated September 1999 and December 2000;

· Letter to KC from Centrelink dated 13 September 2000 with attachment of Youth Allowance Statement by young person;

· Community Service Order Instruction dated 4 September 2000;

· Katoomba Innovation Initiative Assessment Report by Deb McMillan date 16 August 1999; and

· Handwritten notes of various dates - 10 pages.

3. The Guardianship Tribunal made inappropriate comments as follows:
a) The presiding member allegedly said to KA “You have no powers here, how do you feel, how do you feel now?” [That comment did not appear on the transcript.]

b) The presiding member allegedly said to KA’s younger son when he asked whether his family could appeal against the Guardianship Tribunal’s decision, “Yes you can but I don’t recommend it because there’s other issues coming into it.”

Procedural Fairness – Appeal Grounds 1 and 2

8 Introduction. These grounds of appeal amount to an allegation of a denial of procedural fairness. There are two long established rules of procedural fairness, namely the hearing rule and the bias rule. The hearing rule requires that a decision maker hear a person before making a decision affecting their interests. (Kioa v West (1985) 159 CLR 550.) Appeal grounds one and two fall into this category. The bias rule requires a decision maker to disqualify himself from hearing a matter if a fair-minded lay observer might reasonably apprehend that the decision maker might not bring an impartial mind to the resolution of the question to be decided. (Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 75 ALJR 277 per Gleeson CJ, McHugh, Gummow and Hayne JJ at [6] and [8].) The third ground of appeal impliedly involves allegations of bias.

9 Elements of procedural fairness. In GM v Guardianship Tribunal & Ors [2003] NSWADTAP 59, the Appeal Panel set out its understanding of the elements of procedural fairness as they apply to decisions of the Guardianship Tribunal. We adopt the reasoning and conclusions in that decision. When making decisions, the Guardianship Tribunal must afford procedural fairness to any person whose “interests, rights or legitimate expectations” are affected. (Kioa v West (1985) 159 CLR 550 at 584 per Mason J; See, also Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; Johns v Australian Securities Commission (1993) 178 CLR 408; Annetts v McCann (1990) 170 CLR 596.) The content of the hearing rule must be “appropriate and adapted to the circumstances of the particular case.” (Kioa v West (1985) 159 CLR 550 per Mason J at 585.) In the ordinary case, a person whose interests, rights or legitimate expectations are affected should be given an opportunity to deal with adverse information that is “credible, relevant and significant to the decision to be made.” (Kioa v West (1985) 159 CLR 550 per Brennan J at 629.) While all documents which contain adverse material do not necessarily have to be provided to a party, the substance or gravamen of that material should be disclosed. (Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247; Re Pergamon Press Ltd [1971] CH 388; Ansell v Wells (1982) 43 ALR 41; Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs [2000] FCA 113 at 557.) Consequently, in relation to the hearing rule, four questions arise:

a) were the interests, rights or legitimate expectations of KA or his younger son affected by the Guardianship Tribunal’s decision?

b) does procedural fairness require that the Guardianship Tribunal grant KA the adjournment he requested?

c) was there “credible, relevant and significant” material adverse to KA’s application before the Tribunal?

d) if so, was the substance of that material put to KA in circumstances where he had an adequate opportunity to respond to it?

a) Are KA’s interests, rights or legitimate expectations affected?

10 We adopt the reasoning in relation to this question set out in GM v Guardianship Tribunal & Ors [2003] NSWADTAP 59 at [27] to [36]. In Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs [2000] FCA 113, Merkel J noted at 551 that the removal or revocation of a right or privilege may “reflect poorly on the applicant’s conduct, character or professional reputation. A sufficient right or interest of the applicant is thus affected for the rules of natural justice to apply to the revocation of a right or privilege.” In this case, prior to the application by Ms Barber for the appointment of a guardian and financial manager, KA and his wife were in the privileged position of making certain decisions on behalf of their son. The appointment of a guardian and financial manager meant that they were no longer legally entitled to make such decisions.

11 Under s 15(3) of the Guardianship Act 1987, the Guardianship Tribunal is not to appoint the Public Guardian where another person can be appointed. However, under s 17, before appointing such a person, the Tribunal must be satisfied of certain matters including that the personality of the proposed guardian is generally compatible with that of the person under guardianship and there is no undue conflict between the interests of the proposed guardian and those of the person under guardianship. In this case, KA and his wife were the only people putting themselves forward as being willing and able to be KC’s guardian. Although not expressly addressed in the reasons for decision, by appointing the Public Guardian, the Guardianship Tribunal was not satisfied that KA’s personality was compatible with his son’s personality and/or that their interests essentially coincided. In this case, those matters reflected on KA’s conduct for example in refusing certain visitors access to see KC and in attempting to prevent him from listening to certain kinds of music. For all these reasons, KA’s “interests” were affected by the Guardianship Tribunal’s decision to appoint the Public Guardian.

12 Similarly, KA’s “interests” were affected by the Guardianship Tribunal’s decision to appoint the Protective Commissioner as financial manager. In relation to the appointment of a financial manager, s 25M of the Act provides that the Tribunal may “(a) appoint a suitable person as manager of that estate, or (b) commit the management of that estate to the Protective Commissioner.” KA put himself forward as a “suitable” financial manager. In appointing the Protective Commissioner, the Guardianship Tribunal impliedly found that KA was not a “suitable” person. KA’s interests were affected by that decision.

13 It is the duty of everyone exercising functions under the Guardianship Act to observe the principle that “the welfare and interests” of the person who is the subject of the application should be given “paramount consideration.” Affording procedural fairness to KA does not elevate his interests beyond those of his son, KC. On the contrary, acknowledging that KA has an interest in the decision and allowing him the opportunity to address any adverse material ensures that the Guardianship Tribunal will make the best informed decision possible as to KA’s suitability to be KC’s guardian or financial manager. Without KA’s input on relevant issues, the Guardianship Tribunal would have only one side of the story. KC’s interest in having the most suitable guardian or financial manager making decisions for him are therefore enhanced by giving KA the opportunity to be heard, and in particular to address any adverse material.

14 While we are satisfied that KA’s interests are affected by the Guardianship Tribunal’s decision, we are not so satisfied in relation to KA’s younger son. Immediately following the hearing, KA’s younger son wrote a letter of complaint to the Guardianship Tribunal about the way he was treated during the hearing. He said, “I put up my hand to get some attention to speak, the Tribunal party ignored me. My mother had to say five times that (I) would like to say something.”

15 KA’s younger son was not a party to the proceedings before the Guardianship Tribunal, nor was he putting himself forward as a possible guardian or financial manager. He did not exercise any decision making powers on behalf of his brother prior to the Guardianship Tribunal’s orders. There is no obligation on the Guardianship Tribunal to take account of his views pursuant to s 14(2) of the Act. Although he is understandably concerned about his brother’s welfare, he has no rights, interests or legitimate expectations in relation to the Guardianship Tribunal’s decision. In any case, KA’s wife said on at least two occasions during the course of the hearing that her son wanted to say something. The Guardianship Tribunal gave him an opportunity to speak. (Transcript p 39, 40 and 41). Regardless of whether the Guardianship Tribunal was prepared to listen to what he had to say, his interests were not affected by their decision and the ground of appeal relating to the Guardianship Tribunal’s treatment of him fails.

b) Request for adjournment

16 According to KA, the Guardianship Tribunal failed to assist him either by providing legal representation or adjourning the matter so that he could obtain legal representation. There is no obligation on the Guardianship Tribunal to provide a party with legal representation or advice. Legal representation is only permitted with the Tribunal’s leave. KA did not apply for leave to be legally represented. The only remaining issue is whether the Guardianship Tribunal failed to afford KA procedural fairness by denying him an adjournment to obtain legal representation. At page 3 of its decision, the Guardianship Tribunal made the following observations:

(KA) had by letter to the Tribunal dated 12 November 2003 requested an adjournment as he felt that he and his wife would not receive a fair hearing and they wanted fewer people to be present. On the day of the hearing (KA) repeated this request and said that because he and his wife were unable to express themselves well they wished to be legally represented. They had seen a solicitor . . . but he was unavailable on the hearing date of 21 November 2003.

When asked questions about this by the Tribunal KA added that (the solicitor) would not in fact be appearing for them at any future date and had told them they would have to get another solicitor. They had not taken any steps in relation to obtaining alternative representation and it appeared to the Tribunal that event was as uncertain now as it had been since (KA) had written the abovementioned letter.

. . .

The Tribunal determined that this matter should proceed to hearing given the uncertainty that any representation would in fact ever be obtained and the fact that adequate notice had been given of the hearing date.

17 The transcript of the proceedings accords with these comments. Immediately after the hearing, on 21 November 2003, KA wrote to the Guardianship Tribunal saying that he had asked at the hearing for more time to find someone to speak on his family’s behalf because they did not know how to express themselves clearly. KA said that the refusal by the Guardianship Tribunal to give him any more time was unfair. He repeated this submission to the Appeal Panel.

18 One of the fundamental elements of the hearing rule is that parties must be provided with reasonable notice of the hearing. The notice period must be adequate for the party to prepare a response to the matters raised by the application. Ms Barber made her application for guardianship and financial management on 17 October 2003. KA received a copy of Ms Barber’s application sometime between 8 November and 12 November 2003. We make that finding on the basis of the letter from the Guardianship Tribunal dated 7 November 2003 which states that: “A copy of the application/s is attached to this Notice of Hearing” and a letter from KA to the Guardianship Tribunal dated 12 November 2003, in which he says that he and his wife were “. . .very unhappy with the lies that Ms Pauline Barber has written in her guardianship applications to the Guardianship Tribunal that we have received.” The hearing was held on 21 November 2003. Consequently KA had approximately eleven days notice of the hearing. Although this is a relatively short period of time, it is adequate assuming that KA was not taken by surprise in relation to new information at the hearing.

19 A decision as to whether to grant an adjournment involves balancing the consequences to the party of refusing the adjournment with the adverse consequences of an adjournment for other parties or witnesses. (Aronson M & Dyer B, Judicial Review of Administrative Action 2nd edition, LBC Information Services 2000 at 443.) While the Guardianship Tribunal did not expressly balance the consequences of an adjournment for other parties, it concluded that the matter “should proceed to hearing given the uncertainty that any representation would in fact ever be obtained and the fact that adequate notice had been given of the hearing date.” In those circumstances, the Guardianship Tribunal did not breach the hearing rule in denying KA an adjournment to obtain legal representation.

c) Adverse material.

20 Introduction. The next question is whether there was “credible, relevant and significant” material adverse to KA’s application before the Tribunal. The material before the Guardianship Tribunal which was adverse to KA’s application consisted of Ms Barber’s application, the report of Louise Smith (the Investigation Report) and certain documentary material set out in [6] above.

21 Ms Barber’s application. In Ms Barber’s application she states that “(KC) is a young man who, prior to his injury, chose to live apart from his parents, and chose to have limited contact with them. They have not had regular contact for the past 5 years. They are now making it difficult for [KC’s] friends to visit and talk with him. There has been more than one incident at the hospital of conflict between his parents and other concerned people. Concerns have been expressed regarding KC’s response to this conflict and his ongoing welfare.”

22 The Investigation Report. The Investigation Report contained the following material which was adverse to KA:

1. KA and his wife asked the hospital to ban certain of KC’s friends from visiting him and there was a concern about how this was affecting KC.

2. KA and his wife were attempting to prevent certain kinds of music containing bad language from being played to KC.

2. Prior to his injury KC had chosen to live apart from his parents and to have limited contact with them.

3. KC had told Centrelink that he did not want any contact with his parents.

4. KA and his wife had applied to Centrelink for KC’s Youth Allowance to be resumed and also made an application for a Disability Support Pension.

23 Other documentary material . The following adverse material was before the Tribunal:

1. KC does not get along with his parents and finds it difficult to communicate with them. He does not wish not to be closely involved with his family. (Letter to Guardianship Tribunal from Yasmin Jansa, Katoomba Youth Refuge dated 10 November 2003; Katoomba Innovation Initiative Assessment Report by Deb McMillan date 16 August 1999; Youth Allowance Statement by KC.)

2. Since leaving home KC gets on better with his parents than when he was living at home but still feels harassed by them about what he is doing with his life. (Youth Allowance Statement by KC.)

3. KA and his wife were openly hostile to staff members and visitors who visited KC at Nepean Hospital. (Letter to Guardianship Tribunal from Yasmin Jansa, Katoomba Youth Refuge dated 10 November 2003.)

24 Credible, relevant and significant to the decision? All this material was relevant to the question of whether KA and his wife were suitable to be appointed as KC’s guardian and/or financial managers. There is no apparent reason to doubt its credibility and it was significant to the Tribunal’s decision to appoint the Public Guardian and the Protective Commissioner, rather than KA and his wife as KC’s guardian and financial manager.

d) Was the substance of the material put to KA and did he have an adequate opportunity to respond to it?

25 Introduction. The adverse material which was before the Tribunal can be divided into the following categories: KC’s problematic relationship with his parents prior to the injury, KA denying certain visitors access to KC and KA wishing to prevent certain music being played to KC.

26 Relationship with KC. The problematic nature of KC’s relationship with his parents was mentioned in Ms Barber’s application, the Investigation Report (the comments were based on those made in the application), the letter to Guardianship Tribunal from Yasmin Jansa, Katoomba Youth Refuge dated 10 November 2003, the Katoomba Innovation Initiative Assessment Report by Deb McMillan date 16 August 1999 and the Youth Allowance Statement by KC. In relation to Ms Barber’s application, we have already found that KA had approximately eleven days to prepare a response to the information that it contained. KA responded to that material in some detail in his letter of 12 November 2003. The Guardianship Tribunal listed this letter in its decision as one of the documents submitted to it in relation to the applications. In our view, KA had an adequate opportunity to respond and did in fact respond to the information in the application and, consequently, on the information in the Investigation Report on which it was based.

27 Opportunity to respond to other documents. It is common ground that KA was not given a copy of any of documents other than the Investigation Report and Ms Barber’s application prior to the hearing. Some of the material in other documents listed above at [6] is more specific and more disparaging of KA and his wife than the material in the application and the Investigation Report. For example the allegations that KC does not get along with his parents and finds it difficult to communicate with them; that he does not to be closely involved with his family and that he feels harassed by them about what he is doing with his life. Ms Barber said at p 12 of the transcript, “With respect to KA (and his wife) KC had chosen not to live with them and have a lot of contact with them for several years.” At page 26 of the transcript the presiding member put to KA that his relationship with KC prior to his injury was “somewhat distant.” KA and his wife then explained how much contact KC had with them after he left home when he was 16 years old. The presiding member explained that the amount of contact they had with KC was not as important as the fact that KC appeared to have chosen to put some distance between himself and his parents. Even though the Tribunal chose to use less emotional words such as “distance” rather than saying that KC felt “harassed” or found it “difficult to communicate” we are satisfied that the substance of the matter was put to KA and his wife and they had an adequate opportunity to respond. For those reasons, they were not denied a fair hearing in relation to that matter.

28 Access to visitors. In her application and at the hearing, Ms Barber raised the issue about access to visitors. She mentioned that there had been several meetings involving KA where the issue of who should be permitted to visit KC was discussed. In one of the documents not provided to KA before the hearing (Letter to Guardianship Tribunal from Yasmin Jansa, Katoomba Youth Refuge dated 10 November 2003) it was alleged that KA and his wife were openly hostile to staff members and visitors who visited KC at Nepean Hospital. During the course of the hearing, the presiding member said, “Let’s hear from (KA) about it . . ” The presiding member asked KA, “What’s the problem with KC having visitors from his group of friends . . ?” KA was given an opportunity to respond to that question and said that one particular person “was not going to do him any good.” The presiding member put to KA that he might unduly restrict the friends who could visit KC if the Guardianship Tribunal appointed him as KC’s guardian. KA had an opportunity to respond to that proposition. (See page 17, 18 and 19 of transcript). Although the presiding member did not specifically put to KA that he had been openly hostile to staff members and visitors, we are satisfied that the substance of the allegations were put to KA and he was given a reasonable opportunity to respond. In those circumstances we are of the view that they were not denied a fair hearing in relation to that matter.

29 Playing music. We could not identify anywhere in the information provided to KA prior to the hearing an allegation that it was not appropriate for him to prevent people from playing music to his son which contained bad language. The presiding member raised this issue during the course of the hearing and KA responded by saying that “loud music I don’t think is going to help him, and bad language is not going to help him.” KA said that he was not sure that playing music which KC used to enjoy would stimulate his brain in the way in which some doctors alleged. Again, the Guardianship Tribunal put to KA and his wife during the course of the hearing that their opposition to certain music being played was an issue. KA had an opportunity to respond to that matter and the Tribunal did not deny him a fair hearing.

30 Investigation Report. On the basis of our conclusions, it is not strictly necessary to consider when KA was given a copy of the investigation report. Nevertheless, given the attention this issue received at the hearing we propose to make a finding on that point. KA gave evidence that he did not receive a copy of this report until he was walking into the hearing room. The presiding member was 30 or 40 minutes late for the hearing as he had been caught in traffic and KA said that he gave the parties “a little while” to read the report before the hearing started. KA said that he was unable to read it thoroughly in that time.

31 Ms Barber gave evidence that she received a copy of the Investigation Report at about the time the hearing was due to start, and read it several times in the waiting room. She estimates that she had at least 20 minutes to read it because the presiding member was running late. She does not know if KA was given a copy of the Investigation Report prior to the hearing. Ms Barber’s evidence on this point is not inconsistent with KA’s evidence.

32 We find that KA was given a copy of the Investigation Report as he entered the hearing room and was given “a little while” to read it. While this is not an ideal situation, especially given KA’s difficulty reading and digesting long, complex documents, we have found in the circumstances of this case that the substance of the information in that report was put to KA and his wife, either in the form of Ms Barber’s application or during the course of the hearing.

Biased/inappropriate comments – appeal ground 3

33 KA alleged that no matter what he and his wife said during the hearing, the minds of the Guardianship Tribunal members were closed. He said that parts of the hearing had not been recorded or words had been removed from the transcript. KA gave oral evidence before the Appeal Panel in relation to these allegations. As we said at the beginning of these reasons, bias is an element of procedural fairness. The bias rule requires a decision maker to disqualify himself from hearing a matter if a fair-minded lay observer might reasonably apprehend that the decision maker might not bring an impartial mind to the resolution of the question to be decided.

34 KA said that during the course of the hearing, the presiding member nodded or indicated in some other way for the Tribunal member sitting next to him to stop or start the tape recorder. KA said he could see the tape recorder on the desk but he could not tell whether it was on or off at any point in time. He claimed that it did not occur to him until he received the transcript that the tape must have been off for some parts of the hearing. Ms Barber gave evidence that she did not remember anyone fiddling with the tape recorder other than turning it over when the first side was finished. KA says that the following words, which do not appear in the transcript, were said by the presiding member:

a) To KA, “You have no powers here, how you feel, how do you feel now?”

b) To KA’s younger son when he asked whether they could appeal against the decision, “Yes you can but I don’t recommend it because there’s other issues coming into it.”

35 Power comment . KA alleged that the presiding member made this comment at the start of the hearing, shortly after he had apologised for being late. It was put to KA that he may have interpreted other comments made by the presiding member as suggesting he had no power. For example, at page 7 of the transcript when talking about whether the Tribunal would normally grant a person in KA’s position leave to be represented by a solicitor or barrister, the presiding member said:
We often grant the person who is the subject of the application leave to be represented because it’s their rights that are affected. Your rights aren’t necessarily affected because the decision, if we make one today, relates to (KC) it doesn’t relate to you, because (KC) under the law is considered to be an adult, he is over 18, then you don’t have any automatic rights as parents or what the lawyers call, you know, in loco parentis. Your role as parents and legal guardians of (KC) cease when he turns 18.
36 Again, at page 32 of the transcript, the presiding member said in response to a comment from KA that KC sometimes made decisions without thinking:
Presiding Member: Well, the situation there is that when someone is like that they’ve got full competency which he had before you just make your own choices. Sometimes they are irresponsible, sometimes they are not, sometimes they are good choices and you’ve got no control over them as you’ve found out as a parent, didn’t you? You found out you had no control over KC’s choices even though he was irresponsible sometimes.

KA: You do your best and guide your children.

37 KA was clear that he had not confused these passages with the words he recollects the presiding member saying. Ms Barber gave evidence that she does not recall the presiding member saying to KA words to the effect that he had no power or asking him how he felt about that.

38 Appeal comment. KA denied that he was confusing what the presiding member said to him with the following passage from page 58 of the transcript:

Unidentified speaker: (younger son) wants to say something.

Younger son: If you didn’t like the decision, like my parents and I, can we appeal against it, and go higher?

Presiding Member: You will get something in the mail in about 14 days which outlines all of that. The answer to that, in short, is yes, you can appeal. Before you do that read the decision and read the information that you get.

Unidentified speaker: But that will all come to you so that you’ve got your full explanation of what to do if you want to.

. . .

Presiding Member: A contrary view was expressed by: . . . Yes, you will get information about appeal rights but you should get advice about appeal because you can expose yourself to costs orders and things like that. All right, does that answer your question?

KA: Yes.

39 Ms Barber gave evidence that she recalled the younger son asking about appeal rights and the presiding member advising him to wait until they received the decision because there may be cost implications. She did not recall the presiding member saying that he did not recommend that they appeal.

40 Findings of fact. KA was understandably feeling intimidated and anxious before the Guardianship Tribunal hearing. Although he obviously had the impression that the presiding member said various things to him which were not in the transcript, the transcript reads fluently and Ms Barber does not recall either the comments being said, or the tape being stopped and started. There are passages in the transcript (quoted above) which are very similar to the words which KA recalls the presiding members saying. In those circumstances we are not satisfied that the tape was turned off during any part of the Guardianship Tribunal hearing or that the presiding member said the words attributed to him by KA. Since the allegations of fact which underpin this ground of appeal have not been accepted, the ground of appeal must fail.

41 There being no error of law, the next question for the Appeal Panel is whether to grant leave to hear an appeal on the merits of the decision. In accordance with the decision of Young J in K v K [2000] NSWSC 1052, one basis for granting leave would be if the Tribunal has gone about its fact finding process in an unorthodox manner or in a manner which is likely to produce an unfair result. The Tribunal’s decision sets out the oral and documentary evidence available to it. Other than the allegations of a breach of procedural fairness, it was not submitted that the Tribunal went about its fact finding process in an unorthodox manner or in a manner which is likely to produce an unfair result. No other matters were brought to our attention which would suggest that leave should be granted to extend the appeal to the merits of the Tribunal’s decision. Because the legislature has given the Guardianship Tribunal primary responsibility for appointing substitute decision makers, the Appeal Panel should not assume that responsibility unless there is a persuasive reason for doing so.

Orders

1. The appellant’s application for leave to appeal against the merits of the Guardianship Tribunal’s decision is refused.

2. The appeal is dismissed.