kN v Ko

[2004] NSWADTAP 44

Appeal Panel - External

CITATION:	KN v KO & Ors [2004] NSWADTAP 44
PARTIES:	APPLICANT KN FIRST RESPONDENT KO SECOND RESPONDENT Protective Commissioner THIRD RESPONDENT & DECISION MAKER Guardianship Tribunal
FILE NUMBER:	048003
HEARING DATES:	29/06/2004
SUBMISSIONS CLOSED:	06/29/2004
DATE OF DECISION:	10/12/2004
DECISION UNDER APPEAL:	Guardianship Tribunal
BEFORE:	Rees N - Deputy President; Millar J - Judicial Member; Whaite A - Non Judicial Member
CATCHWORDS:	Financial management order - review
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	C/26562
DATE OF DECISION UNDER APPEAL:	03/30/2004
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Guardianship Act 1987 Protected Estates Act 1983
CASES CITED:	EM v Commissioner of Police, NSW Police Service [2002] NSWADT 268 Kioa v West (1985) 159 CLR 550 Murphy v Doman [2003] NSWCA 249 Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82
REPRESENTATION:	APPLICANT In person FIRST RESPONDENT No appearance SECOND RESPONDENT No appearance THIRD RESPONDENT E Cho, legal officer
ORDERS:	1. Appeal dismissed; 2. Decision and order made by the Guardianship Tribunal on 30 March 2004 affirmed

Introduction

1 In this case KN has appealed against a decision made by the Guardianship Tribunal on 30 March 2004 to render her estate subject to a financial management order. The Guardianship Tribunal ordered that KN’s estate be subject to management by the Protective Commissioner under the provisions of the Protected Estates Act1983.

2 The Guardianship Tribunal is given jurisdiction by Division 1 of Part 3A of the Guardianship Act 1987 to make financial management orders in various circumstances. Section 25I of the Guardianship Act 1987 deals with direct applications to the Guardianship Tribunal for a financial management order. Such applications may be made by the Protective Commissioner, or by “any person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person who is the subject of the application” (s 25I(1)(b) Guardianship Act 1987).

3 In this case an application was made to the Guardianship Tribunal, pursuant to s 25I(1)(b) of the Guardianship Act 1987, for a financial management order in relation to KN by KO, who is a Support Worker with the Homelessness Action Team Support & Outreach Service (HATSOS) at the Department of Housing. Whilst KO provided a written report to the Guardianship Tribunal, she was not present at the hearing of her application by the Guardianship Tribunal on 30 March 2004. The only people present at that hearing were KN and a Serbian interpreter. KN opposed the application for a financial management order. After hearing from KN, and considering numerous written reports, the Guardianship Tribunal decided that a financial management order should be made in relation to KN. The Tribunal exercised the power granted to it by s 25E of the Guardianship Act 1987 to commit the management of KN’s estate to the Protective Commissioner.

4 KN has appealed against that decision and order of the Guardianship Tribunal. The grounds of her appeal are set out at [10]. Despite our recommendation to KN that she seek legal assistance to argue the appeal, KN presented her own case. At KN’s request the proceedings were conducted with the assistance of a Serbian interpreter.

Jurisdiction

5 Section 67A(1)(e) of the Guardianship Act 1987 provides that a person may appeal to this Tribunal (the ADT) against a decision made by the Guardianship Tribunal pursuant to s 25E of that Act. Section 118A of the Administrative Decisions Tribunal Act 1997 (the ADT Act) confers jurisdiction on the ADT to hear appeals from other decision-makers if another Act grants a right of appeal. These appeals are referred to in the ADT Act as external appeals.

6 Section 118B of the ADT Act provides that an external appeal may be made, as of right, on any question of law and, with the leave of the Appeal Panel, on any other grounds. Once an Appeal Panel has determined the appeal it may make “such orders as it thinks appropriate in the light of its decision” (s 118C(1) ADT Act). The Appeal Panel may affirm or set aside the original decision (s 118C(2)(a) ADT Act). If the decision is set aside, the Appeal Panel may remit the matter to the original-decision maker to be heard and decided again in accordance with directions from the Appeal Panel, or it may determine the matter itself (s 118C(2)(b) and (c) ADT Act).

Parties

7 Section 67(2A) of the ADT Act stipulates who are the parties to an external appeal to an Appeal Panel of the ADT. Those parties are the appellant and any person entitled to be a party in accordance with the ADT’s rules. Rule 41A(1) of Schedule 1 to the Administrative Decisions Tribunal Rules (Transitional) Regulation 1998 provides that anyone who was a party to the proceedings before the original-decision maker, in this instance the Guardianship Tribunal, is entitled to be a party to the appeal.

8 KN has standing to lodge the appeal as she was a party to the original proceedings before the Guardianship Tribunal (see ss 3F(5)(b) and 67A(2) Guardianship Act 1987) and she is the person who has been made subject to a financial management order. The other parties to the appeal as of right are KO, the original applicant for the financial management order, and the Protective Commissioner, who was appointed by the Guardianship Tribunal to manage KN’s estate. Both were parties to the original proceedings before the Guardianship Tribunal (see s 3F(5)(a) and (f) Guardianship Act 1987). Both KO and the Protective Commissioner chose to play no part in this appeal.

9 The Guardianship Tribunal became a party to the appeal in accordance with the provisions of s 67(2B) of the ADT Act which provides that when there is an external appeal to the ADT the original decision-maker may elect to be a party to the appeal. The Guardianship Tribunal was represented at the hearing of the appeal by its legal officer, Ms Cho. In keeping with authority and practice the Guardianship Tribunal was not an active participant at the hearing in the sense of opposing or supporting the appeal, but Ms Cho provided us with much useful background information about this case.

The grounds of the appeal

10 KN prepared her own Notice of Appeal without any legal assistance. It appeared from reading that document, and from listening to KN’s arguments, that she wished to challenge the decision of the Guardianship Tribunal on four grounds. They were, first, that the applicant for the financial management order, KO, was not present at the Guardianship Tribunal hearing; secondly, that KN herself was not properly advised of the Guardianship Tribunal hearing; thirdly, that the Guardianship Tribunal found her to be a person with a mental illness when she is not a person with a mental illness and; fourthly, that the Guardianship Tribunal was in error when it found her to be a person in need of a financial management order because she did not owe any money to any person or organization and could properly manage her own financial affairs.

11 As we noted at [6] s 118B of the ADT Act provides that an external appeal may be made, as of right, on any question of law and, with the leave of the Appeal Panel, on any other grounds. In most cases it is clearly desirable to make all reasonable efforts at the outset to distinguish between those appeal grounds which raise questions of law and those which invite re-consideration of the merits of the decision under challenge. In this case, as there was no opposing party, and as KN was not represented by a lawyer despite recommendations that she seek legal aid or pro bono legal assistance, it seemed an unproductive exercise to ask KN to identify those of her appeal grounds which raised questions of law and those which invited re-consideration of the merits of the decision under challenge. Accordingly, KN was permitted to present argument in support of all of her appeal grounds.

12 As KN was not legally represented we closely examined the decision of the Guardianship Tribunal in order to determine whether there was any legal error not identified by KN, and whether there was any reason to re-visit the findings of fact made by the Guardianship Tribunal and the exercise its discretionary power to make a financial management order in relation to KN.

13 In this case the first three appeal grounds appear to involve questions of law and the fourth is a challenge to the merits of the Guardianship Tribunal’s decision. For reasons which are set out at [38] to [59] we have concluded that the first three appeal grounds are not made out. The Guardianship Tribunal did not make any errors of law. After carefully considering the arguments advanced by KN we have concluded, for the reasons given at [60] to [61], that there are no good reasons to re-consider the merits of the Guardianship Tribunal’s decision.

The Guardianship Tribunal’s decision

14 In its Reasons for Decision the Guardianship Tribunal recorded that the only people who attended the hearing of KO’s application for a financial management order on 30 March 2004 were KN and a Serbian interpreter. The Tribunal noted that it had considered seven written reports, as well as KO’s formal written application for a financial management order. As we did not have a transcript of the proceedings before the Guardianship Tribunal we do know what took place at that hearing. Ms Cho informed us that it was the usual practice of the Guardianship Tribunal to provide the person who is the subject of the application with access to the written reports which the Tribunal proposes to consider.

15 Under the heading ‘Background to application’ the Guardianship Tribunal stated:

[KN] is a 69 year old woman who presently resides at [an address in Sydney].

She is reported to have a mental illness.

The applicant stated that this application was made because of concerns that [KN] may jeopardise her Department of Housing accommodation due to outstanding debts to the Department.

16 Under the heading ‘The Evidence and the Tribunal’s Reasoning’ the Guardianship Tribunal stated:
[KN] is 69 years of age and currently resides in Department of Housing accommodation in [a suburb of Sydney]. She has previously lost Department of Housing accommodation because of the non payment of rent. There is currently $1791 owing in rent to the Department being paid off at $10pfn by the Protective Commissioner. Prior to her current allocation of housing in June 2003 she had been homeless and the evidence was that she would not continue to be housed unless the arrears and current rent are paid. The Tribunal concluded after discussion with [KN] that she does not acknowledge this situation and does not see why she should pay rent.

An interim financial management order was made under the Protected Estates Act 1983 which is due to lapse on 26th March 2004.

[KN] was of the strong view that a financial management order should not be made. She related ongoing difficulties in communication with the Office of the Protective Commissioner (OPC) and the Tribunal concluded from this and the information provided by the OPC that the relationship was a difficult one, as experienced from both sides.

After a consideration of all of the evidence, the Tribunal concluded that [KN] was unable to manage her financial affairs so as to pay rent and ensure her basic need for accommodation was met. The payment of rent when necessary is one of those ordinary everyday financial transactions, where consistent and long standing failure to understand and be able to carry them out will lead the Tribunal to conclude that a person is unable to manage his or her financial affairs in the sense of s 25G of the Guardianship Act. There is a need for someone else to manage [KN’s] affairs and it is in her best interests that an order be made so that her basic need for accommodation may be met.

There is no suitable private person to be appointed as financial manager. The Protective Commissioner should continue to manage [KN’s] financial affairs.

17 The Guardianship Tribunal made the following findings and order:
1. [KN] is not capable of managing her affairs;

2. there is a need for another person to manage those affairs;

3. that it is in the best interests of [KN] that a financial management order be made.

4. Management of the property and affairs of [KN] should be committed to the Protective Commissioner.

The application to appoint a representative for the appellant

18 Prior to the hearing of this appeal Ms Cho, the legal officer for the Guardianship Tribunal, wrote to the Registrar of the ADT on behalf of the Guardianship Tribunal with the suggestion that the ADT should exercise the power granted to it by s 71(4) of the ADT Act to appoint a person to represent KN in this appeal because she is an “incapacitated person”. Ms Cho wrote:

The Tribunal submits that [KN] is at least partially incapable of representing herself in the proceedings before the Administrative Decisions Tribunal due to her disability. The Tribunal understands that the Protective Commissioner’s view is that he should not act as a tutor in cases where the decision being appealed is his own appointment as financial manager.

Therefore the Tribunal submits that the appropriate course would be to appoint a separate representative for [KN] who can ensure that her interests are presented to the Tribunal at the hearing of this appeal. In the Tribunal’s view, [KN] is not able to act in her best interests in this appeal proceedings and independent representation is needed. The Tribunal acknowledges that [KN] may not agree with this view and has stated previously that she does not need or want legal representation. Nonetheless, the Tribunal submits that it is open to the Administrative Decisions Tribunal to appoint a separate representative for her because she is not able to make a clear and competent decision about her need for representation due to her disability.

19 In the letter Ms Cho referred to a recent decision of the NSW Court of Appeal, Murphy vDoman [2003] NSWCA 249, which she submitted “supports the view that there cannot be a proper and fair hearing for an unrepresented litigant where that litigant is not capable of managing his or her own affairs and is not acting by a tutor”.

20 As a matter of procedural fairness we declined to respond to the Guardianship Tribunal’s application until the hearing of the appeal. At the commencement of that hearing Ms Cho formally made the application outlined at [18]. KN opposed the appointment of a person to represent her in the appeal. Ms Cho informed us that despite the fact that s 58(2) of the Guardianship Act 1987 permits the Guardianship Tribunal to appoint a person to act as the guardian ad litem of any person who is the subject of a guardianship or financial management application, it was not the usual practice of the Guardianship Tribunal to make such appointments. In this case the Guardianship Tribunal did not exercise its power to appoint a guardian ad litem for KN when it was considering KO’s application that a financial management order be made in respect of KN.

21 The ADT is granted the power by s 71 of the ADT Act to appoint a person to represent a party to any proceedings before the Tribunal. Relevant parts of s 71 are as follows:

(1) A party to proceedings before the Tribunal may:
(a) appear without representation, or

(b) be represented by an agent, or

(c) if the party is an incapacitated person—be represented by such other person as may be appointed by the Tribunal under subsection (4)…

(4) If it appears to the Tribunal that a party is an incapacitated person, the Tribunal may appoint any other person the Tribunal thinks fit to represent the party.

(4A)Without limiting subsections (1) and (4), the Tribunal may:

(a) in the case of an external appeal made under section 67A of the Guardianship Act 1987 appoint any person the Tribunal thinks fit to represent a party to the proceedings who:

(i) is a protected person within the meaning of that Act, or

(ii) is a person in respect of whom a guardianship order (within the meaning of that Act) has been made or in respect of whom an application for such an order has been refused, and

(b) in the case of an external appeal made under section 21A of the Protected Estates Act 1983 appoint any person the Tribunal thinks fit to represent a party to the proceedings who is a protected person within the meaning of that Act…

(7) In this section:

incapacitated person means:

(a) a minor, or

(b) a person who is totally or partially incapable of representing himself or herself in proceedings before the Tribunal because the person is intellectually, physically, psychologically or sensorily disabled, of advanced age, a mentally incapacitated person or otherwise disabled, or

(c) any other person of a class prescribed by the regulations for the purposes of this paragraph.

22 Both s 71(4) and s 71(4A) of the ADT Act permit us to appoint a person to represent KN in this appeal. Section 71(4) has been in the ADT Act since its inception. Section 71(4A) was added to the ADT Act in 2002 by the Guardianship and Protected Estates Legislation Amendment Act 2002 which amended the Guardianship Act 1987 and other relevant statutes to permit appeals from the Guardianship Tribunal to an Appeal Panel of the ADT.

23 In order to exercise the discretionary power granted by s 71(4) to appoint a person to represent a party it must appear to the ADT that the party is an “incapacitated person”. That term is defined in s 71(7). No regulations have been made pursuant to s 71(7)(c). The power granted by s 71(4) may be exercised in any proceedings before the ADT.

24 When the ADT is exercising its s 71(4A) discretionary power of appointment it is not necessary to find that a party is an “incapacitated person” in order to appoint a person to represent that party. In those cases where an appeal is made to the ADT pursuant to s 67A of the Guardianship Act 1987 the discretionary power granted by s 71(4A) to appoint a person to represent a party may be exercised in relation to a person who is a “protected person” under the Guardianship Act 1987, or a person in respect of whom a guardianship order was made or refused by the Guardianship Tribunal. KN is a “protected person” within the meaning of Part 3A of the Guardianship Act 1987 because she is subject to a financial management order which is currently in force. The s 71(4A) discretionary power may also be exercised in relation to a person who is a “protected person” under the Protected Estates Act 1983 when an appeal is made to the ADT pursuant to s 21A of the Protected Estates Act 1983. That section, which is not relevant in this case, deals with appeals to the ADT from orders made by a Magistrate or the Mental Health Review Tribunal.

25 In this case we declined to appoint a person to represent KN. Before stating the reasons for that decision it is important to explain the effect of appointing a person to represent a party, pursuant to either s 71(4) or s 71(4A) of the ADT Act. The role of a ‘s 71(4) representative’ was considered in EM v Commissioner of Police, NSW Police Service [2002] NSWADT 268. The Tribunal stated:

[16]…In choosing a person to fulfil the role of a s 71(4) representative it is necessary to characterise the position. Whilst s 71(4) states that the role is to represent the incapacitated person, we do not believe that the role is akin to that of a legal practitioner who represents a person in legal proceedings acting on the basis of that person’s instructions. A consideration of s 71 as a whole leads to the conclusion that the role is similar to that of a tutor or guardian in civil proceedings in the courts. Section 71(1) refers to three means by which a party may participate in proceedings before the Tribunal: in person, by an agent (e.g. a legal practitioner) or, if incapacitated, by a person appointed by the Tribunal pursuant to s 71(4). Thus, the roles of an agent and a s 71(4) representative are different. The fact that the Tribunal may only appoint a s 71(4) representative for a party if it finds that party to be an “incapacitated person” also leads to the conclusion that a s 71(4) representative has a similar function to a person who is tutor for a disabled person pursuant to Part 63 of the Supreme Court Rules 1970.

[17] In this instance the person appointed as the s 71(4) representative will personally have the conduct of the proceedings. This person will not act on the applicant’s instructions but he/she must make decisions which he/she believes to be in the applicant’s best interests. The applicant will not have the capacity to terminate the appointment of the s 71(4) representative. That person may be represented by a legal practitioner if he/she wishes. Whilst legal representation appears desirable, there is no equivalent in the Tribunal Act to Part 63 rule 3(2) of the Supreme Court Rules 1970 which renders it mandatory for a tutor to be legally represented. Similarly, whilst it may be desirable for the s 71(4) representative to seek the Tribunal’s approval of any proposed compromise or settlement of these proceedings, the Tribunal Act contains no equivalent to Part 63 rule 11(1) of the Supreme Court Rules 1970 which renders court approval of a compromise or settlement mandatory.

26 There is no reason to believe that a person appointed as a ‘s 71(4A) representative’ has any different functions to those of a ‘s 71(4) representative’. In both instances the role of the representative is similar to that of a tutor in civil proceedings in the courts; he or she performs a protective function. The representative has the carriage of the proceedings. Whilst he or she must act in the best interests of the party being represented, the representative does not act on that party’s instructions. Thus, viewed from one perspective, a party loses the right to conduct proceedings as he or she wishes if a representative is appointed pursuant to s 71(4) or s 71(4A). This is not a right which should be withdrawn lightly, especially if that party opposes the appointment of a representative.

27 In order to exercise the s 71(4) power of appointment it must appear to the Tribunal that the party in question is an “incapacitated person”. That term is defined in s 71(7) of the ADT Act. In this case there is no evidence which would permit us to conclude that KN appears to be an “incapacitated person” in the s 71(7) sense of being totally or partially incapable of representing herself because she is “intellectually, physically, psychologically, or sensorily disabled, of advanced age, a mentally incapacitated person or otherwise disabled”. Ordinarily, medical evidence would be required in order to make a finding that a person appeared to be disabled in one or more of the ways referred to in s 71(7). In cases of doubt the Tribunal may adjourn the proceedings in order to obtain medical evidence. In extreme cases the Tribunal may be able to act on the basis of its own observations, especially as s 71(4) of the ADT Act permits the Tribunal to appoint a representative when a party appears to be an “incapacitated person”.

28 There was no medical evidence before the ADT or the Guardianship Tribunal which would permit a finding that KN is an “incapacitated person”. In its Reasons for Decision the Guardianship Tribunal noted that KN “is reported to have a mental illness”. The evidence before the Guardianship Tribunal did not permit a more definitive finding about KN’s mental state. Presumably, the Tribunal did not adjourn to seek that evidence because it concluded that it was not required in the circumstances of the case before it.

29 The Guardianship Tribunal was dealing with an application for a financial management order made pursuant to s 25I of the Guardianship Act 1987. It was not necessary for the Guardianship Tribunal to find that KN was a person with a “disability”, or in any other way fell within the definition of “incapacitated person” in s 71(7) of the ADT Act, in order to exercise the power in s 25E of the Guardianship Act 1987 to make a financial management order. That power may be exercised when the criteria in s 25G of the Guardianship Act 1987 are satisfied. Those criteria, which are reproduced below at [55], contain no reference to disability of any sort. A financial management order may be made in respect of a person without any disability.

30 We determined that it was unnecessary to adjourn this case to seek medical evidence concerning KN and we did not consider this an extreme case where the Tribunal could exercise its s 71(4) power by relying on its own observations concerning the appearance of a disability.

31 As we have already noted, KN opposed the Guardianship Tribunal’s application that a person be appointed to represent her in these proceedings. With the assistance of a Serbian interpreter, KN communicated with us without any apparent difficulty. She demonstrated a reasonable command of English because she frequently responded (in English) to questions asked of her without waiting for the translation into Serbian. KN clearly understood the nature of the proceedings and she presented coherent arguments in support of her appeal. Whilst her case may have been presented with more formality, and perhaps in greater detail, had she been legally represented, we are satisfied that KN understood that legal aid or pro bono legal assistance may have been available to her, yet she chose to present her own appeal as she was quite entitled to do.

32 Section 71(4A) of the ADT Act permits the Tribunal to appoint a representative for KN without the necessity of finding that she is an “incapacitated person”. It seems clear that the intent of s 71(4A) is to permit the ADT to appoint a person to protect the interests of certain parties to appeals from decisions of the Guardianship Tribunal, the Mental Health Review Tribunal and Magistrates. The only pre-condition to exercising the s 71(4A) power of appointment is the status of the party in question. In broad terms the party must have the status of being a person in respect of whom the Guardianship Tribunal, the Mental Health Review Tribunal or a Magistrate has made (or in some instances refused to make) a ‘protective order’. Often, the person with the necessary status will not be the appellant. In such instances the ADT may determine that the only way to properly protect the interests of that person is to appoint a representative pursuant to s 71(4A) of the ADT Act.

33 KN has the status that is necessary for a s 74(1A) appointment. She is a “protected person” within the meaning of Part 3A of the Guardianship Act 1987 because she is subject to a financial management order which is currently in force.

34 The power of appointment under s 71(4A) of the ADT Act is a discretionary one. In cases where the party with the necessary status is the appellant the ADT should be slow to exercise its s 71(4A) power of appointment when the appellant resists an appointment and he or she appears to have the capacity to argue the appeal, or to instruct a legal practitioner to do so. Just because an appellant has the status which permits a s 71(4A) appointment, the ADT should not assume that the appellant lacks the capacity to present his or her own appeal. It is important to repeat that the effect of appointing a person to represent a party is to deprive that party of the right to conduct the appeal as he or she wishes.

35 Despite the fact that KN has the status that is necessary for the appointment of a representative we declined to exercise that power because we were not satisfied that KN lacked the competence to present her own appeal. We have already recorded our observations that KN was able to present her challenge to the Guardianship Tribunal’s decision lucidly and coherently. In the circumstances we concluded that it was preferable to permit KN to present her own appeal rather than to appoint a representative who could have withdrawn the appeal in its entirety, or deleted some of the appeal grounds upon which KN relied. If a representative had taken either of these steps KN may have felt, quite justifiably, that she had been denied the opportunity to challenge the Guardianship Tribunal’s decision.

36 The circumstances of this case are vastly different to those which arose in Murphy vDoman [2003] NSWCA 249, which was the recent Court of Appeal decision that Ms Cho drew to our attention. In that case, which was a tort action in the District Court, the plaintiff succeeded on the question of liability but received a small award of damages because he failed to comply with various directions that he file written submissions concerning his damages. He subsequently appealed to the Court of Appeal and produced medical evidence that he was seriously mentally ill at the time he was supposed to have filed the written submissions. The Court of Appeal allowed the appeal and directed a re-trial on the question of damages because it found that the plaintiff was effectively denied a hearing because he was not competent at the time the small damages award was made.

37 In this case there is no medical evidence which casts doubt upon KN’s competence to present her own appeal and there was nothing in KN’s behaviour before the ADT which led us to conclude that we should adjourn the appeal in order to obtain medical evidence about her competence. In Murphy vDoman [2003] NSWCA 249 the plaintiff was deprived of the capacity, and hence the opportunity, to pursue his common law right to damages because of his mental illness. In this case KN is not seeking to pursue any such right. An order of the Guardianship Tribunal deprived her of the right to manage her own financial affairs. She is entitled by law to appeal against that decision. KN was alerted to the availability of legal aid and pro bono legal assistance, yet she determined that she wished to present her own appeal. KN was entitled to do that unless there are reasonable grounds for believing that she lacked the competence to do so.

Conclusions

38 We set out KN’s four appeal grounds at paragraph [10]. The first ground was that KO, the applicant for the financial management order, was not present at the Guardianship Tribunal hearing. Despite the fact that we did not have the benefit of a transcript of the hearing before the Guardianship Tribunal, it was not in dispute that KO was not present at that hearing. As KO chose not to participate in this appeal we did not have the opportunity to hear her explanation of her failure to attend the Guardianship Tribunal hearing. We accept, however, that KO’s failure to attend was not due to any fault on her part.

39 Ms Cho provided us with an explanation, which we accept, for KO’s absence from the Guardianship Tribunal hearing. It appears that KO did not receive advice from the Guardianship Tribunal about the date upon which her application was to be heard. When KO, who is Support Worker with HATSOS at the Department of Housing, completed her Application for a Financial Management Order she wrote the street address of her place of employment on the relevant form. That address is a multi-storey office building. When the Guardianship Tribunal wrote to KO to advise her of the hearing the letter was addressed to her at that street address without any indication of the level upon which she worked. It appears that the letter was not drawn to her attention prior to the hearing.

40 By virtue of s 58(1) of the Guardianship Act 1987 KO was entitled to be present at the Guardianship Tribunal hearing as she was a party to the application for a financial management order concerning KN. There is nothing in the Guardianship Act 1987 which suggests, however, that KN’s presence at the hearing was essential and that the Guardianship Tribunal lacked the power to proceed in her absence.

41 For KN to succeed in her appeal on the ground that KO was not in attendance it is necessary for us to be satisfied that her right to a fair hearing was infringed by KO’s absence from the hearing. Whilst the Guardianship Act 1987 does not expressly stipulate that the Guardianship Tribunal must comply with the rules of procedural fairness or natural justice, KN was clearly entitled to procedural fairness in her dealings with the Guardianship Tribunal because her rights and interests were affected by the application for a financial management order (seeKioa v West (1985) 159 CLR 550 at 584, per Mason J).

42 In the absence of express statutory provisions that stipulate how a fair hearing must be conducted, the substance of the right to a fair hearing is determined by the particular circumstances of the case (seeKioa v West (1985) 159 CLR 550 at 627, per Brennan J). In the circumstances of this case KN was entitled, at the very least, to be informed of the evidence which may have caused the Guardianship Tribunal to make a financial management order, and to have been provided with the opportunity to challenge that evidence and to lead evidence in rebuttal (see Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 at 101, per McHugh J). The absence of a transcript renders it difficult to determine whether KN was given these opportunities.

43 We have attempted to piece together what took place at the Guardianship Tribunal hearing on 30 March 2004 by combining KN’s account of what transpired with Ms Cho’s description of what usually transpires at Guardianship Tribunal hearings. The major issue of substance was KN’s capacity to manage her financial affairs and the possible consequences of any proven incapacity to manage her finances. The most significant evidence in support of making a financial management order was a report from the Protective Commissioner who had managed KN’s estate from 26 March 2003 until 26 March 2004 in compliance with an interim order made by a Magistrate pursuant to s 20(1) of the Protected Estates Act 1983 at the Prince of Wales Hospital on 26 March 2003.

44 It was not in dispute that KN was homeless for a significant period of time prior to the Protective Commissioner’s appointment as her financial manager on 26 March 2003. The reasons for her homelessness were disputed. The Department of Housing maintained that a prior tenancy had been terminated for non-payment of rent; KN disputed any rental arrears. Once the Protective Commissioner was appointed the manager of KN’s estate by order of the Magistrate he was statutorily obliged to make proper enquiries about KN’s indebtedness to any person (see s 24 Protected Estates Act 1983).

45 On 23 March 2004, nearly a year after his initial appointment, the Protective Commissioner provided a comprehensive report to the Guardianship Tribunal about KN’s assets, liabilities, income and expenditure. This report contained information about KN’s rental arrears to the Department of Housing and accounts of various attempts by staff from the Office of the Protective Commissioner to explain to KN, with the assistance of an interpreter, the various components of those rental arrears. The Protective Commissioner reported that the rental arrears were being repaid at the rate of $10 per fortnight from KN’s social security payments. In the circumstances, and bearing in mind the Protective Commissioner’s statutory responsibilities, the Guardianship Tribunal was clearly entitled to proceed on the basis that this was the best evidence of KN’s financial position at the time of the hearing and of the consequences of any past inability to manage her own financial affairs.

46 KN asserted that KO should have been in attendance at the Guardianship Tribunal hearing because KO was the person who made the application for the financial management order. KN did not suggest that there were particular questions that she wanted to ask KO, or that she was in any other way prejudiced by KO’s non-attendance at the hearing. The objection to KO’s absence from the Guardianship Tribunal hearing was one of form rather than substance.

47 Whilst it was obviously desirable that KO be present at the hearing, we are not satisfied that KO’s absence denied KN a fair hearing because, for example, she was unable to challenge any assertions of fact or opinion made by KO in her written application or subsequent report. There was little, if anything, of substance in KO’s application for a financial management order, or her report to the Guardianship Tribunal, which was not canvassed in the Protective Commissioner’s report. For the reasons already given, the Protective Commissioner’s report was the decisive document because it was the best evidence of the matters which the Guardianship Tribunal was obliged to consider.

48 In the circumstances of this case we are not satisfied that KN was deprived of the right to a fair hearing because KO, through no fault of her own, was not present at the Guardianship Tribunal hearing on 30 March 2004. There is no substance to the first ground of appeal.

49 The second appeal ground relied upon by KN was that she was not properly advised of the date of the Guardianship Tribunal hearing. Section 25I(3) of the Guardianship Act 1987 provides that the applicant for a financial management order must serve a copy of the application upon each party to the proceedings as soon as practicable after making the application. Section 25I(4) stipulates that the application which is served must be endorsed with a notice specifying the time, date and place set down for hearing the application. Section 25I(5) provides that “failure to serve a copy of the application in accordance with this section does not vitiate a decision of the Tribunal on the application”. Consequently, any failure to comply with the service requirements in s 25I of the Guardianship Act 1987 does not lead to the automatic conclusion that there was an error of law which invalidated the Guardianship Tribunal’s decision. For KN to succeed in her appeal on the ground that she was not properly served with an appropriately endorsed copy of the application it is necessary for us to be satisfied that her right to a fair hearing was infringed because of inadequate notice.

50 Proper notice is part of a fair hearing. Aronson, Dyer and Groves (Judicial Review of Administrative Action, (3rd ed,), 2004) state (at 499):

Notice, and an opportunity to be heard before a decision is made, are generally regarded as fundamental…

Since the purpose of notice is to enable participation, the content of the notice must be such as to allow its recipient to participate fully and effectively in whatever manner is found appropriate in the circumstances of the particular case.

51 In this case s 25I(3) of the Guardianship Act 1987 was not complied with because the applicant, KO, did not serve KN with a copy of the application endorsed in the manner prescribed by s 25I(4). The Guardianship Tribunal served the application upon KN. On the day KO filed the application, however, she did send KN a letter in which she stated, “I have made an application with the Guardianship Tribunal…for a long-term financial management order”. Apparently KN discovered the time, date and place of the application when she visited the Guardianship Tribunal at some time after the application was filed (17 March 2004), but before it was heard (30 March 2004). She subsequently received an appropriately endorsed copy of the application from the Guardianship Tribunal before the hearing date.

52 KN’s objection to the manner in which she was advised of the date, time and place of the hearing, like her objection to KO’s absence from the hearing, was one of form rather than substance. In answer to questions from the ADT about possible prejudice to her because of the failure to comply with s 25I(3) of the Guardianship Act 1987, KN did not suggest that she was denied the opportunity participate fully and effectively in the hearing because she was prevented, for example, from arranging legal representation or from presenting evidence which suggested that she was capable of managing her financial affairs.

53 We are not satisfied that KN was denied a fair hearing because she was not served with a copy of an appropriately endorsed copy of the application by the applicant in strict compliance with s 25I(3) of the Guardianship Act 1987. The Guardianship Tribunal served her with an appropriately endorsed copy of the application. KN has not complained that she had insufficient time to prepare for the hearing, or that she was denied the opportunity to participate fully and effectively in the hearing in any other way. There is no substance to the second ground of appeal.

54 The third ground of appeal was that the Guardianship Tribunal found KN to be a person with a mental illness when she is not a person with a mental illness. After listening to KN we characterised this appeal ground as one involving a question of law because it was apparent that KN had concluded, after reading an information sheet produced by the Guardianship Tribunal, that it was necessary for the Guardianship Tribunal to find that she was a person with a mental illness in order to make a financial management order.

55 This view was mistaken. The relevant provision in the Guardianship Act 1987 did not require the Guardianship Tribunal to find that KN was a person with a mental illness in order to make a financial management order. The Guardianship Tribunal did not find KN to be a person with a mental illness.

56 The grounds upon which the Guardianship Tribunal may make a financial management order are set out in s 25G of the Guardianship Act 1987 which states:

The Tribunal may make a financial management order in respect of a person only if the Tribunal has considered the person’s capability to manage his or her own affairs and is satisfied that:
(a) the person is not capable of managing those affairs, and

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

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

57 There is no reference to mental illness, or any other disability, in s 25G of the Guardianship Act 1987. In its Reasons for Decision the Guardianship Tribunal noted under the heading ‘Background’ that KN “is reported to have a mental illness”. This observation did not form part of the Tribunal’s reasons for concluding that all three elements of s 25G were made out in this case.

58 It was apparent from KN’s statements to the ADT that she had misconstrued an information sheet produced by the Guardianship Tribunal headed ‘What does the Guardianship Tribunal do?’. Whilst KN had read a Serbian translation of this information sheet, we accept the testimony of the Serbian interpreter that it was an accurate translation of the English version of the document.

59 At one point the document refers to the criteria which must be satisfied before the Guardianship Tribunal will appoint a guardian for a person and notes the need for evidence that the person has a disability. In the following paragraph the document sets out the quite different criteria that must be satisfied before a financial manager may be appointed. It appears that KN read the two paragraphs as being a cumulative list of criteria for the appointment of a financial manager and concluded that the Guardianship Tribunal had to find her to be a person with a disability before a financial management order could be made. As we have noted, that is not the case. The Guardianship Tribunal did not find KN to be a person with a mental illness. It had no evidence which would have permitted that finding and it did not need to make such a finding in order to make a financial management order for KN. There is no substance to the third appeal ground.

60 The final ground of appeal was that the Guardianship Tribunal was in error when it found KN to be a person in need of a financial management order because she did not owe any money to any person or organization and could properly manage her own financial affairs. This is a challenge to the merits of the Guardianship Tribunal’s decision in relation to findings of fact and to the exercise of a statutory discretion.

61 There was ample evidence which permitted the Guardianship Tribunal to find that it was satisfied that the three criteria in s 25G of the Guardianship Act 1987 had been made out. We can identify no reason to re-visit those findings. Section 25G provides that once the Guardianship Tribunal is satisfied that those three criteria are made out it may exercise a discretionary power to make a financial management order. We can identify no reason to suggest that the discretion miscarried and should be reconsidered. We decline to extend the appeal to allow for a review of the merits of the Guardianship Tribunal’s decision.

Orders

62 We make the following orders:

1. Appeal dismissed.

2. Decision and order made by the Guardianship Tribunal on 30 March 2004 affirmed.