KV v Protective & Ors; KW & Ors v KV & Ors (No.2)

[2004] NSWADTAP 48

Appeal Panel - External

CITATION:	KV v Protective & Ors; KW & Ors v KV & Ors (No.2) [2004] NSWADTAP 48
PARTIES:	File Number: 048004 APPELLANT KV FIRST RESPONDENT Protective Commissioner SECOND RESPONDENT KW THIRD RESPONDENT KX FOURTH RESPONDENT KY FIFITH RESPONDENT KZ SIXTH RESPONDENT Guardianship Tribunal File Number 048008 APPELLANTS KW, KY and KX FIRST RESPONDENT KV SECOND RESPONDENT KZ THIRD RESPONDENT Guardianship Tribunal
FILE NUMBER:	048004, 048008
HEARING DATES:	10/08/2004
SUBMISSIONS CLOSED:	08/10/2004
DATE OF DECISION:	11/03/2004
DECISION UNDER APPEAL:	Guardianship Tribunal 2004/217
BEFORE:	Hennessy N - Magistrate (Deputy President); Britton A - Judicial Member; Wunsch A - Non Judical Member
CATCHWORDS:	Financial management order - making - Opportunity to be heard - Procedural fairness - Ultra vires
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	C/28176
DATE OF DECISION UNDER APPEAL:	04/02/2004
LEGISLATION CITED:	Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) Administrative Decisions Tribunal Act 1997 Guardianship Act 1987 Powers of Attorney Act 2003
CASES CITED:	Ansell v Wells (1982) 43 ALR 41 J v Lieschke & Others (1986) 162 CLR 477 Kioa v West (1985) 159 CLR 550 Moore v Guardianship and Administration Board & Anor [1990] VR 902 Moore v Guardianship And Administration Board & Another [1990] VR 902 Muin v Refugee Review Tribunal (2002) 76 ALJR 966 Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs [2000] FCA 113 PRA v MA, Supreme Court of Victoria Court of Appeal, per Ormiston, Batt and Buchanan JJA [4 March 2004] R v London Borough of Wandsworth; Ex parte P [1989] 1 FLR 387 Re Mc (1989) 3 VAR 87 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 Re R [2000] NSWSC 886 Re Refugee Tribunal; ex parte Aala (2000) 75 ALJR 52 Re Toohey and Another; Ex parte Meneling Station Pty Ltd and Ors (1982) 44 ALR 62 The Grand Hotel v Development Assessment Commission [1998] SASC 7018
REPRESENTATION:	File No: 048004 APPELLANT In person File No.: 048008 APPELLANTS In person File No.: 048004 FIRST RESPONDENT No appearance SECOND, THIRD & FOURTH RESPONDENT In person FIFTH RESPONDENT L Critchley, solicitor SIXTH RESPONDENT E Cho, legal officer File No.: 048008 FIRST RESPONDENT In person SECOND RESPONDENT L Critchley, solicitor THIRD RESPONDENT E Cho, legal officer Files 048004 & 048008 COUNSEL ASSISTING THE TRIBUNAL A Johnson, solicitor
ORDERS:	1.The following orders are made in substitution for the Tribunal’s financial management orders:; a) the estate of KZ is subject to management under the provisions of the Protected Estates Act 1983 pending further order of the Guardianship Tribunal; b) the management of the estate of KZ is committed to the Protective Commissioner pending further order of the Guardianship Tribunal; Those matters are remitted to the Guardianship Tribunal to be heard and decided again including the hearing of further evidence, if any, from any party; 2. The following order of the Guardianship Tribunal is set aside: not to conduct a review of the enduring power of attorney executed by KZ in favour of KV; That matter is remitted to the Guardianship Tribunal to be heard and decided again including the hearing of further evidence, if any, from any party.

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 KZ is an 80 year old woman who, according to one medical practitioner, has “moderately advanced dementia” and has difficulty in managing her financial affairs. She has lived in a nursing home since 2001. Before that she was living in her own home with assistance from her four adult children. KV, who will be referred to in these reasons as “the older son” has held an enduring power of attorney in relation to his mother since February 2003 and wants to continue to be his mother’s financial manager. The three younger siblings (the siblings) maintain that the older son has not been acting in their mother’s best interests in the way in which he has handled her financial affairs.

2 On 13 January 2004 the siblings applied to the Guardianship Tribunal (the Tribunal) for a financial manager to be appointed to manage their mother’s affairs. On 4 March 2004 they made a further application to the Tribunal for a review of the making of a power of attorney by KZ in favour of the older son. At the hearing of these two applications on 18 March 2004, the siblings also applied for a guardianship order. The Tribunal heard some evidence in relation to the first two applications and then adjourned the matter for two weeks so that the older son could obtain legal advice. At the second hearing on 2 April the Tribunal decided:

- to appoint the Protective Commissioner as the manager of KZ’s estate;

- to appoint the Public Guardian to be KZ’s guardian for a period of 12 months to make decisions on her behalf about accommodation and access to services;

- to appoint KW, one of the siblings, to be KZ’s guardian for a period of 12 months to make decisions about her health care and medical and dental treatment; and

- not to carry out a review of the making of the enduring power of attorney.

3 Two appeals have been lodged against the Tribunal’s decisions. The older son appeals against the Tribunal’s decision to make a financial management order. (Although there are some references to the guardianship orders in the older son’s grounds of appeal, he was not a party to the guardianship application and appealed only in relation to the financial management order.) The three siblings appeal against the Tribunal’s decision not to review the making of the power of attorney held by the older son.

4 The Appeal Panel’s role is to determine whether the Tribunal has made an error of law when hearing and determining these matters. The parties also appeal the merits of the decisions, but the Appeal Panel’s permission must be obtained before an appeal can proceed on that basis. (Section 118B(1) of the Administrative Decisions Tribunal Act 1997 (ADT Act)).

FINANCIAL MANAGEMENT APPEAL

Grounds of Appeal

5 The factual grounds of appeal concerning the financial management order are:

a) The Tribunal erred in finding that KZ does not have the mental capacity to make financial decisions.

b) The Tribunal erred in finding that it would be in the best interest of KZ for the Protective Commissioner to manage her estate.

6 The appeal grounds on questions of law can be summarised as follows:
1) The Tribunal erred in not allowing a sufficient adjournment to enable the older son to obtain expert reports on KZ’s capacity.

2) The Tribunal erred in not taking into account the evidence of KZ that she wanted her older son to be responsible for her financial management.

3) The Tribunal erred in not providing the older son with copies of the medical reports relied on by the siblings.

4) The Tribunal erred in not taking into consideration the submissions and evidence of KZ in relation to issues including how she wanted her affairs to be managed.

5) The Tribunal erred in proceeding to determine the matter when the older son had not been supplied with a full copy of the application for review.

6) The Tribunal erred in accepting the reports of Dr Cordato which were prepared without the benefit of an independent interpreter.

7) The Tribunal erred in not taking into consideration the fact that Dr Cordato’s report was prepared for the purposes of a damages claim.

8) The Tribunal erred in allowing the hearing to proceed in the absence of an interpreter who spoke KZ’s dialect being available to her.

9) The Tribunal erred by not allowing the older son to read out his submissions at the hearing.

10) The Tribunal erred in allowing the majority of its time to be taken up by the submissions of the siblings.

Errors of fact

7 In relation to the alleged errors of fact, the first ground is that the Tribunal erred in finding that KZ did not have the requisite mental capacity to make financial decisions. Ms Critchley, representing KZ, expressed the view that the Guardianship Tribunal’s conclusion about KZ’s capacity is unreliable. According to Ms Critchley it would have been preferable for the Tribunal to have obtained further expert evidence on the extent of any cognitive deficit and its impact on KZ’s decision making capacity before making their decision. We understand Ms Critchley to be submitting that the Tribunal made a mistake of fact in coming to the conclusion that KZ is not capable of managing her financial affairs. We will consider whether to extend the appeal to the merits of the Tribunal’s decision after determining whether it has made any legal error.

8 The second factual ground of appeal is that the Tribunal erred in finding that it would be in the best interest of KZ for the Protective Commissioner to manage her financial affairs. We deal with that question, which is a mixed question of fact and law before examining the alleged errors of law.

Best interests of KZ

9 Under s 25G(c) of the Guardianship Act 1987 (the Guardianship Act), the Tribunal cannot make a financial management order unless it is satisfied that it is in the person’s best interests that the order is made. The meaning of “best interests” was considered by Young J in Re R [2000] NSWSC 886 at [35]. His Honour adopted a definition formulated by the Victorian Administrative Appeals Tribunal:

…‘best interests’ must include the welfare, health and well-being of the person in a wider sense than is suggested by protection from neglect, abuse or exploitation ( Re Mc (1989) 3 VAR 87).
10 Young J also noted that the courts traditionally took the view that it is not in the best interests of a principal that the person exercising the power of attorney give money or benefits away, in particular to themselves: at [36] to [39].

11 In relation to the making of a financial management order, the Tribunal’s reasons canvass the difficulties that have arisen when the older son has managed his mother’s financial affairs. The Tribunal also took into account KZ’s view about who should look after her financial affairs and the history of conflict between the older son and the siblings. All of these matters are relevant in determining the “best interests” of KZ, as that term was defined in Re R and the Tribunal did not err in the way in which it reached its conclusion.

Grounds 1, 3 & 5 – procedural fairness

12 Failure to provide full copy of application. Ground 5 concerns the Tribunal’s alleged failure to provide the older son with the attachments to the siblings’ application for a financial management order. Because there was insufficient space on the application form, the siblings attached two additional pages. The first attachment sets out the background to, and reasons for, the application. The second attachment sets out the reasons advanced by the siblings for their application to be heard urgently. The older son was not given copies of these attachments prior to or at the hearing.

13 Section 25I(3) of the Guardianship Act provides that an applicant for a financial management order must serve a copy of the application on each party as soon as practicable after making the application. The older son was not served with a complete copy of 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 a failure to comply with s 25I(3) does not mean that there has been an error of law which would justify setting aside the Tribunal’s decision. (See PRA v MA, Supreme Court of Victoria Court of Appeal, per Ormiston, Batt and Buchanan JJA [4 March 2004].) But the broader question arises as to whether such a failure constitutes a breach of procedural fairness justifying the Tribunal’s decision being set aside. We have come to the conclusion, based on our analysis of the application of the rules of procedural fairness set out below, that although the material in attachments 1 & 2 made prejudicial allegations about the older son, those allegations were put to him during the hearing and he had an adequate opportunity to address them. Although we did not have access to a copy of the transcript, those conclusions are apparent from the Tribunal’s reasons for decision.

14 Failure to provide copies of medical reports. Ground 3 concerns the Tribunal’s failure to provide the older son with copies of some medical reports and its failure to provide copies of other medical reports in time to give the older son a reasonable opportunity to respond. Dr Cordato, a neurologist who had been treating KZ since 2001, was asked to provide a medical report to the Tribunal in relation to KZ’s capacity. He provided a medical report dated 1 March 2004 and attached three other reports he had written about KZ dated 20 December 2001, 9 May 2002 and 11 August 2003. The older son was not given a copy of any of these reports at the 18 March hearing. After the hearing the older son went to Dr Cordato’s office and Dr Cordato gave him copies of the three medical reports he had attached to his report to the Tribunal. On 24 March the older son wrote to his siblings saying that he had obtained copies of three of Dr Cordato’s reports. The older son then took his mother to see Dr Natali, one of her general practitioners, but Dr Natali told him that he was not in a position to provide a report in relation to KZ’s capacity.

15 After the 18 March hearing the Tribunal obtained a copy of a medico legal report from Dr Buckley relating to a pedestrian accident in which KZ had been involved. The first time the older son received the reports of Dr Buckley dated 14 October 2002 and Dr Cordato dated 1 March 2004, was at the 2 April hearing. At that hearing he challenged the opinions contained in those reports. He says that he did not have sufficient opportunity to obtain his own expert evidence. By the time of the Appeal Panel hearing, the older son had obtained further expert evidence which conflicts with the conclusions reached by Dr Cordato and Dr Buckley about KZ’s capacity. We cannot take that evidence into account unless we extend the appeal to the merits of the decision.

16 Failure to grant a sufficient adjournment. Ground 1 relates to the alleged failure of the Tribunal to grant a sufficient adjournment after the 18 March hearing. The older son specifically referred to his inability to obtain new medical reports to address the issue of KZ’s mental capacity to make a valid power of attorney. Since the older son did not appeal against the Tribunal’s decision not to carry out a review of the enduring power of attorney, that ground is not relevant. However, we understand from the submissions in ground 3, that the older son was also concerned that he did not have enough time to obtain medical evidence which was relevant to the financial management application.

Procedural fairness

17 The crux of the older son’s submissions in relation to Grounds 1 & 3 is that he was denied procedural fairness by not being given an adequate opportunity to respond to the material in the medical reports. The “hearing rule”, which is one aspect of the rules of procedural fairness, requires that a decision maker hear a person before making a decision affecting their interests. (See Re Refugee Tribunal; ex parte Aala (2000) 75 ALJR 52 at 73.) The content of the hearing rule must be determined keeping in mind that the rules must be “appropriate and adapted to the circumstances of the particular case.” (Kioa v West (1985) 159 CLR 550 per Mason J at 585.)

18 Our task is to determine the content of the hearing rule taking into account the Tribunal's jurisdiction, the statutory requirements about how that jurisdiction is to be exercised and judicial statements concerning the meaning of the obligation to abide by the rules of natural justice. We have drawn on the analysis in a recent comprehensive journal article by John Blackwood which deals with the disclosure of documents by Guardianship Tribunals. (Blackwood J, “Fairness v Privacy: Disclosure of Documents by Guardianship Tribunals” Psychiatry, Psychology and Law, Volume 11, Number 1 2004 pp 122-140.)

19 The questions which the Appeal Panel must ask itself are:

- whether the interests, rights or legitimate expectations of the older son are affected by the Tribunal’s decision ( Kioa v West (1985) 159 CLR 550 at 584 per Mason J);

- whether there is a “clear manifestation” in the Guardianship Act or some exceptional circumstances which means that participants in proceedings do not have to be accorded procedural fairness (Kioa v West (1985) 159 CLR 550 per Mason J at 584);

- whether the material is “credible, relevant and significant to the decision to be made” (Kioa v West (1985) 159 CLR 550 per Brennan J at 629); and

- if so, whether that material, or the substance of that material, was put to the older son in circumstances where he had an adequate opportunity to respond to it?

20 Interests . Because the appointment of the Protective Commissioner deprives KZ of the benefit she would normally have of making independent decisions about her financial affairs, her welfare and interests “should be given paramount consideration .” ( Guardianship Act : s 4(a).) Although KZ’s interests are paramount, they are not expressed to be the sole consideration that the Tribunal may take into account. ( R v London Borough of Wandsworth; Ex parte P [1989] 1 FLR 387, per Ewbank J.) O ther people may have interests which, depending on the circumstances of the case, give rise to an obligation to afford them procedural fairness.

21 At the time of the Tribunal hearing, the older son held an enduring power of attorney in relation to KZ and was a party to the application for financial management by virtue of that fact. (Guardianship Act: s 3F(5)(e).) He was in the privileged legal position of making certain financial decisions on behalf of his mother. At the Tribunal hearing he put himself forward as a suitable person to be his mother’s financial manager, either by continuing to hold the power of attorney or by being appointed as manager of his mother’s estate. The appointment of the Protective Commissioner meant that he was no longer legally entitled to make financial decisions on behalf of his mother. In those circumstances we are satisfied that the older son had a legal interest in the proceedings that was affected by the Tribunal’s decision.

22 No clear manifestation of a contrary intention. There is nothing in the Guardianship Act which suggests that those whose interests are affected by a decision do not have to be accorded procedural fairness. (See Moore v Guardianship and Administration Board & Anor [1990] VR 902.) In fact, the Act contains several provisions which are consistent with the rules of procedural fairness being applicable. These include: the requirement for the applicant to serve the application on each party (s 25I(3)); the use of oral hearings, the opportunity to examine and cross-examine witnesses (s 59(a) & (b)); and the opportunity to address the Tribunal on such matters as are relevant to the proceedings (s 59(e)).

23 Frustration of purpose for which jurisdiction conferred. Another factor which would indicate a clear manifestation of a contrary intention is whether the application of the normal rules of procedural fairness would “frustrate the purpose for which the jurisdiction is conferred.” (J v Lieschke & Others (1986) 162 CLR 477 at 456-457 per Brennan J) The Guardianship Tribunal’s jurisdiction is a protective one. However, as Blackwood points out in his article (supra at 124):

. . .while the nature of the jurisdiction is clearly relevant in determining the approach taken to disclosure of information, Guardianship Tribunals may not be able to rely on the essentially protective, investigatory or inquisitorial nature of their proceedings as a justification for non-disclosure, particularly if the non-disclosed information is adverse or prejudicial to a party’s interest and likely to be relied upon by the Tribunal in coming to a decision.
24 Exceptional circumstances: urgency . Exceptional circumstances, such as the need to keep material confidential or to hear a matter urgently may displace the hearing rule. ( Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 116 per Kirby J, at 100 per McHugh J; Muin v Refugee Review Tribunal (2002) 76 ALJR 966 at 991 per McHugh J; Kioa v West (1985) 159 CLR 550 per Brennan J at 629; J v Lieschke (1987) 69 ALR 647 Brennan J at 653). Similarly, if disclosure could cause serious harm to the health or safety of a person, failure to disclose the material may not constitute a breach of procedural fairness. Although the siblings set out their reasons for seeking an urgent hearing in Attachment 2 to the application, there is no indication that the application was dealt with urgently. It was lodged on 15 January and first set down for hearing on 18 March 2004. While it was in KZ’s best interests to have the matters resolved quickly, the Tribunal was prepared to grant the older son a two week adjournment after the 18 March hearing to enable him to seek legal advice. The application was not sufficiently urgent to justify any qualification to the Tribunal’s normal practice when setting the matter down for hearing.

25 Exceptional circumstances: confidentiality/serious harm. As is the case in most applications before the Tribunal, sensitive and private information about KZ’s health and mental capacity was relevant in this matter. But that information is not so sensitive or private in this case that it should not be disclosed to her older son with whom she as a close relationship. There was no suggestion that she would have objected to him seeing the medical reports or that disclosure to him could harm KZ’s health or safety. The Tribunal may need to assess whether confidentiality or safety is an issue, prior to circulating any documents to the parties. Alternatively, the Tribunal may wish to devise another means of putting the parties on notice of any adverse material.

26 Credible relevant and significant material. The medical reports relied on by the Tribunal in this case contain “credible, relevant and significant” material about KZ’s capacity to manage her financial affairs. While the issue of whether the subject person lacks capacity will generally not be in dispute, it was in dispute in this case.

27 Substance or gravamen of material. Procedural fairness requires that at least the substance of any credible, relevant or significant document be disclosed to a party whose interests are affected. (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.) However, as was the case in Ansell v Wells, there are times when a party will need to respond to a document and cannot realistically do so unless they have access to a copy of the whole document. As Blackwood notes, (supra at 128) “Normally that opportunity is given to the person by providing him or her with a copy of the document that contains the adverse information.” Unless there is a persuasive reason for not disclosing a medical report, a copy of the whole report should be disclosed if the content is disputed.

28 What constitutes an adequate opportunity to respond? If a document is “credible, relevant and significant” then a reasonable time must be given for the party to inspect and make comment on the document. (Moore v Guardianship And Administration Board & Another [1990] VR 902; The Grand Hotel v Development Assessment Commission [1998] SASC 7018 at [45].) A copy of the document should be provided to parties as soon as is practicable after the medical report is received. We appreciate that the Tribunal may receive medical evidence very close to the hearing date or at the hearing itself. In those cases, alternative arrangements will be needed such as the granting of an adjournment if the content of the report is disputed.

29 Conclusion. The older son’s legal interests are affected by the Tribunal’s decision and there is no “clear manifestation” in the Act of an intention that he not be afforded procedural fairness. In the light of the Tribunal's jurisdiction, the statutory requirements about how that jurisdiction is to be exercised and judicial statements, the Tribunal is obliged to give him an adequate opportunity to respond to any adverse information that is “credible, relevant and significant to the decision to be made”. The general rule will not apply where there are exceptional circumstances, such as the need for an urgent hearing or where the material needs to be kept confidential because, for example, disclosure could cause serious harm to the health or safety of a person. None of those circumstances was present in this case.

30 In the circumstances of this case it would not be sufficient to merely inform the older son of the substance of the report. A full copy of the report is necessary to enable other practitioners to comment on the diagnosis outlined in the report. The older son did not receive copies of any medical reports at the 18 March hearing even though the Tribunal had copies of Dr Cordato’s reports at that stage. The two week adjournment did not allow him sufficient time to respond to the medical evidence. At the 2 April hearing he was given two further reports but he had no opportunity to obtain expert evidence in response to those reports because the hearing was concluded on that day. In our view the Tribunal did not give the older son an adequate opportunity to respond to the medical evidence and there has been a breach of the hearing rule in that regard.

Appropriate orders?

31 The older son’s suitability to manage his mother’s financial affairs was a significant issue in these proceedings. Rather than setting aside the Tribunal’s order, which would have the effect of re-instating the power of attorney in favour of the older son, we consider it more appropriate to substitute a new decision for the Tribunal’s decisions in relation to financial management. The substituted orders maintain the status quo. Having found an error of law and substituted a different decision for the Tribunal’s decision, the question arises as to whether we should hear and determine the merits of the appeal.

32 One advantage of hearing the merits of the appeal is that the applications would be resolved more quickly, especially since the older son has now had an opportunity to obtain medical evidence which conflicts with the opinions of Dr Cordato and Dr Buckley. Nevertheless, since the Tribunal is a specialist Tribunal with the relevant skills and expertise in this area, we have decided to remit the matter to the Tribunal. Their determination may include the hearing of further evidence, if any, from any party whose interests are affected by the financial management decision. We note that Ms Critchley, representing KZ, expressed the view that the Tribunal’s conclusion about KZ’s capacity is unreliable. The effect of the our decision to remit the matter to the Guardianship Tribunal will be to enable further evidence to be submitted.

Orders

33 The following orders are made in substitution for the Tribunal’s financial management orders:

a) the estate of KZ is subject to management under the provisions of the Protected Estates Act 1983 pending further order of the Guardianship Tribunal;

b) the management of the estate of KZ is committed to the Protective Commissioner pending further order of the Guardianship Tribunal.

Those matters are remitted to the Guardianship Tribunal to be heard and decided again including the hearing of further evidence, if any, from any party.

34 We deal with the remainder of the older son’s grounds of appeal in relation to the financial management below. Those grounds do not disclose any error of law.

Ground 2 and 4 - Failure to take into account KZ’s views

35 In grounds 2 and 4, the older son alleges that the Tribunal failed to take into account KZ’s views about who she wanted to manage her financial affairs. When exercising any function under the Guardianship Act, including the making of a financial management order the Tribunal must observe the principles set out in s 4. Section 4(d) provides that:

It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles:

(d) the views of such persons in relation to the exercise of those functions should be taken into consideration

36 The High Court interpreted a similar provision in the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) in the case of Re Toohey and Another; Ex parte Meneling Station Pty Ltd and Ors (1982) 44 ALR 62. Section 50(4) of that Act stated that:
(4) In carrying out his functions the Commissioner shall have regard to the following principles:—

(a) Aboriginals who by choice are living at a place on the traditional country of the tribe or linguistic group to which they belong but do not have a right or entitlement to live at that place ought, where practicable, to be able to acquire secure occupancy of that place;

(b) Aboriginals who are not living at a place on the traditional country of the tribe or linguistic group to which they belong but desire to live at such a place ought, where practicable, to be able to acquire secure occupancy of such a place.

37 In interpreting that provision Gibbs CJ said at 67:
When the section directs the Commissioner to “have regard to” the strength or otherwise of the traditional attachment by the claimants to the land claimed (sub-s (3)), and to the principles set out in sub-s (4), it requires him to take those matters into account and to give weight to them as a fundamental element in making his recommendation.
38 The Guardianship Act directs the Tribunal to “observe” certain principles. That direction is arguably stronger than a direction to take certain principles into account. In any case the Tribunal must at least take the matter in s 4 into account and give them weight as fundamental elements in coming to a decision.

39 The Tribunal spoke privately to KZ through an interpreter, and sought her views in relation to the application for a financial management order. While we do not have the transcript of that discussion the Tribunal summarised it in their 18 March reasons. The Tribunal said that KZ was able to enunciate her views although some of the evidence she presented was contradictory. The Tribunal went on to note that there is a distinction between the ability of a person to express a view or preference and their capacity to make reasoned and informed decisions. According to the Tribunal where the views of the subject person do not coincide with their best interests, those views may not prevail.

40 The Tribunal ascertained KZ’s views and took those views into account as a fundamental element in coming to its decision. The Tribunal is not required to make a decision which accords with the views of the subject person.

Ground 6 and 8 – adequacy of interpreter

41 Wrong dialect. In ground 8 the older son contends that the hearing should not have proceeded unless KZ had an interpreter proficient in her dialect. To amount to an error of law, KZ must have been denied a reasonable opportunity to be heard because the interpreter was unable to effectively communicate with her. The older son conceded during the course of the hearing that KZ did have a reasonable opportunity to be heard despite the fact that she had some difficulty understanding the interpreter. There is no indication in the Tribunal’s reasons that anyone was concerned that the interpreter was unable to communicate effectively with KZ, or vice versa. The evidence does not support a finding that KZ was denied a reasonable opportunity to be heard.

42 Biased interpreter. Ground 6 alleges that the Tribunal erred in accepting the medical reports of Dr Cordato when KZ did not have access to an independent interpreter when she consulted him. It was common ground that one of the siblings interpreted for KZ when she saw Dr Cordato. This ground alleges an error of fact. The reliance by the Tribunal on the report of Dr Cordato, and the weight to be accorded to it, is a factual decision of the Tribunal that cannot be challenged without first obtaining the Appeal Panel’s permission. In considering whether to grant leave, it is significant that although the older son challenged Dr Cordato’s report before the Tribunal, it was not challenged on this ground. The fact that one of KZ’s daughters acted as an interpreter does not of itself raise doubts about the reliability of the report. There was no evidence that the daughter had any motivation for failing to accurately interpret her mother’s words. Neither is there any legal requirement for an independent interpreter in relation to consultations with doctors who prepare reports that are used in legal proceedings. In those circumstances, leave to appeal against the Tribunal’s decision on this basis is refused.

Grounds 9 & 11 – Time devoted to older son’s evidence and submissions

43 Grounds 9 and 10 contend that the Tribunal erred by not allowing the older son to read his submissions aloud to the Tribunal and by allowing the siblings to take up most of the Tribunal’s time at the hearing. The Tribunal is under a statutory obligation to conduct its proceedings with as little formality as possible and “may inform itself on any matter in such manner as it sees fit.” (Guardianship Act: s 55.) The Tribunal has broad powers to consider the evidence in any fair manner that will allow it to form a view about the application before it.

44 At page 5 of its 2 April decision, the Tribunal notes that the older son complained that he had not been given an opportunity to speak at the previous hearing. He gave the Tribunal written submissions in relation to the first decision, which the Tribunal said that it had read. The Tribunal noted at page 16 of the 2 April decision that at the end of the hearing it called for final oral submissions. The siblings made some submissions and the older son was invited to reply. He declined to take advantage of that opportunity saying that he considered that he had not been given a sufficient opportunity to be heard. The older son did not remain to hear the Tribunal deliver its decision.

45 The procedural fairness obligations of the Tribunal do not require that it allow the parties to read their submissions out loud or that equal time be given to each party. It is for the Tribunal to judge how best to obtain the evidence and hear the submissions, provided that all parties are given a fair opportunity to be heard. In this case, the Tribunal allowed the older son to file at least two sets of written submissions and invited him to make oral submissions. He declined to do so. The contention that the older son was denied procedural fairness in the manner alleged in grounds 9 and 10 has not been established.

Ground 7 – report prepared for medico-legal purposes

46 The older son’s seventh ground of appeal was that the Tribunal erred in not taking into consideration the fact that one of Dr Cordato’s reports was prepared for the purposes of a damages claim. The Tribunal’s reasons record that the older son said that the reports of Dr Buckley had been prepared for the purpose of a damages claim, although in ground 7 the older son contends that it was Dr Cordato’s reports which should not be relied on for that reason. While one of Dr Cordato’s reports (dated 8/10/2001) was a medico legal report, the older son may be confusing that report with the report of Dr Buckley dated 14 October 2002, which was also a medico legal report.

47 A decision to give weight to a report prepared for medico legal purposes is a factual decision. Although challenged at the hearing, the older son has not put forward any reason that this makes the report inherently unreliable. The submission suggests that a doctor might change his or her view about a diagnosis, depending upon the purpose for which the report is sought. Such an inference should not be accepted unless there is some evidence to support it. There is nothing in this ground, which warrants extending the appeal to the merits of the Tribunal’s decision.

POWER OF ATTORNEY APPEAL

48 The basis of the appeal by the siblings was that the Tribunal made an error of law in deciding not to review the enduring power of attorney purported to be made by KZ in favour of her older son. The Tribunal’s jurisdiction comes from s 36(1) and (2) of the Powers of Attorney Act 2003:

(1) A review tribunal may, on the application of an interested person, decide to review the making or the operation and effect of a reviewable power of attorney or not to carry out such a review.

(2) As a consequence of reviewing the making or operation and effect of a reviewable power of attorney, a review tribunal may decide whether or not to make an order under this section.

49 The Tribunal made the following order:
The Tribunal determined not to conduct a review of the enduring power of attorney executed by (KZ) in favour of (her older son). Instead, the Tribunal determined to proceed with the matter by way of application for a financial management order.
50 Although not mentioned in the decision, it appears that in making that order the Tribunal was exercising its powers under s 37 of the Powers of Attorney Act 2003, which states that:
1) If, on a review of the making or operation and effect of a reviewable power of attorney under section 36, the Guardianship Tribunal decides not to make an order under that section in respect of the power of attorney, it may (if it considers it appropriate in all the circumstances to do so) decide to treat the application for the review as an application for a financial management order under Part 3A (Financial management) of the Guardianship Act 1987.

(2) If such a decision is made, the application is taken to be an application for such a financial management order duly made in respect of the principal under that power.

51 The combined effect of s 36 and s 37 is as follows:
a) The Tribunal must first decide whether to review the making of or effect of a power of attorney held by the older son: s 36(1);

b) If the Tribunal decides to review the making or the operation and effect of the power of attorney, it may decide whether or not to make certain orders: s 36(2);

c) If the Tribunal decides not to make any orders, it may decide to treat the application for the review as an application for a financial management order: s 37(1).

52 The Tribunal says, both in its reasons at p 17 and 18 and in its order, that it decided not to undertake a review of the power of attorney. Once it had made that decision, it was not open to it to treat the application as an application for a financial management order. The Tribunal may only treat the application as an application for a financial management order if it decides to undertake a review of the power of attorney but not to make any orders under s 36(3).

53 The failure of the Tribunal to provide any reasons for its decision not to undertake a review of the power of attorney may or may not constitute an error of law. In any case, we find that it made an error by misconceiving its powers under s 36 and s 37 of the Powers of Attorney Act.

54 The effect of making a financial management order and committing the management of KZ’s estate to the Protective Commissioner is to suspend the operation of the power of attorney. Consequently, in light of our previous decisions, if we set aside the Tribunal’s decision, the power of attorney will not be re-activated.

Order

55 The following order of the Guardianship Tribunal is set aside:

not to conduct a review of the enduring power of attorney executed by KZ in favour of KV

That matter is remitted to the Guardianship Tribunal to be heard and decided again including the hearing of further evidence, if any, from any party.