LA v Protective Commissioner

[2004] NSWADTAP 39

Appeal Panel - External

CITATION:	LA v Protective Commissioner & Ors [2004] NSWADTAP 39
PARTIES:	APPELLANT LA FIRST REPONDENT Protective Commissioner SECOND RESPONDENT LB THIRD RESPONDENT LC FOURTH RESPONDENT & DECISION MAKER Guardianship Tribunal
FILE NUMBER:	048007
HEARING DATES:	21/07/2004
SUBMISSIONS CLOSED:	07/21/2004
DATE OF DECISION:	09/08/2004
DECISION UNDER APPEAL:	Guardianship Tribunal c/28616 Matter no. 2004/1517
BEFORE:	Hennessy N - Magistrate (Deputy President); Leal S - Judicial Member; Whaite A - Non Judicial Member
CATCHWORDS:	Expert evidence - weight to be given to - Financial management order - making - Procedural fairness
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	C/28616
DATE OF DECISION UNDER APPEAL:	04/01/2004
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Administrative Decisions Tribunal Rules (Transitional) Regulation 1998 Children and Young Persons (Care and Protection) Act 1998 Evidence Act 1995 Guardianship Act 1987 Protected Estates Act 1983
CASES CITED:	Chen Zhen Zi v Minister for Immigration and Ethnic Affairs (1994) 48 F RF 591 Collins Thomson Pty Ltd (in liq) v Clayton [2002] NSWSC 366 Durayappah v Fernando [1967] 2 AC 337 FGT Custodians Pty Ltd (Formerly Feingold Partners Pty Ltd) v Fagenblat [2003] VSCA 33 Gribbles Pathology (Vic) v Cassidy (2002) 122 FCR 78 Hopkins v Smethwick Board of Health (1890) 24 QBD 712 IF v IG & Ors [2004] NSWADTAP 3 J v Lieschke (1987) 69 ALR 647 K v K [2000] NSWSC 1052 Kioa v West (1985) 159 CLR 550 Kirch Communications Pty Ltd v Gene Engineering Pty Ltd [2002] NSWSC 485 MAW v Western Sydney Area Health Service [2000] NSWSC 358 Mobil Oil Australia Pty Ltd v FCT (1963) 113 CLR 475 PRA v MA Supreme Court of Victoria Court of Appeal [4 March 2004] R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 Re Gabriel [2001] NSWSC 905; W v G [2003] NSWSC 1170 Re Oscar [2002] NSWSC 453, Re Fernando
REPRESENTATION:	APPELLANT In person FIRST RESPONDENT No appearance SECOND RESPONDENT K Burke, barrister THIRD RESPONDENT In person FOURTH RESPONDENT & DECISION MAKER E Cho, Legal Officer
ORDERS:	The decision of the Guardianship Tribunal is affirmed

Introduction

1 LC is a 92 year old woman who is living in a nursing home. She has two children, a daughter LB and a son, LA. LA has appealed to the Appeal Panel against a decision of the Guardianship Tribunal made on 1 April 2004. The decision was that the estate of his mother be subject to management under the provisions of the Protected Estates Act 1983 and that the Protective Commissioner be appointed as his mother’s financial manager. LA wants himself and his sister to be jointly appointed as his mother’s financial managers.

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. (Section 118B(1) of the ADT Act.)

Parties and representation

3 The parties to proceedings before an Appeal Panel include the appellant and anyone else who was a party to the proceedings before the Guardianship 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".)

4 Given the fact that the issues in dispute are, at least initially, confined to questions of law, the Appeal Panel decided not to appoint a separate representative for LC. 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 LC pursuant to s 71(4) of the ADT Act.

5 LC and her son LA appeared in person before the Appeal Panel. LB was represented by a barrister, Ms Burke. The Protective Commissioner is also a party to the appeal, but 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.

Grounds of Appeal

6 LA said that his concerns were:

a) that he did not want strangers running his mother’s affairs;

b) the costs of having his mother’s estate managed by the Protective Commissioner;

c) the doctor’s reports on which the Guardianship Tribunal relied were not objective;

d) LB applied to be her mother’s financial manager without any consultation with her mother, himself or the family accountant; and

e) that the Guardianship Tribunal hearing was conducted in the absence of his mother and without her knowledge.

7 The first two points do not raise a question of fact or a question of law and are not grounds of appeal that this Appeal Panel can consider. The third ground raises the question of whether the Guardianship Tribunal attributed appropriate weight to the medical evidence. That ground is dealt with below. In relation to the fourth ground of appeal, there is no requirement that a person who applies for a financial management order consult with any other person before doing so. Consequently that point does not disclose any legal or factual error. LA’s final ground of appeal, that the Guardianship Tribunal hearing was conducted in the absence of his mother and without her knowledge, raises two questions. The first is whether the Guardianship Tribunal afforded LC procedural fairness and the second is whether the Tribunal observed the principle in s 4(d) of the Act, to take into consideration LC’s views. Those matters are dealt with following our consideration of the allegation that the medical reports were not objective.

Medical reports

8 The third ground of appeal is that expert witnesses gave subjective or biased reports. During the course of the hearing before the Guardianship Tribunal, LC was asked whether there was anything he wanted to say about the medical reports which provided opinions as to his mother’s capacity to manage her affairs. LC did not criticise those reports but merely commented that “she has good days and bad days.” We assume that LC’s point is that the Guardianship Tribunal should not have admitted those reports into evidence or that it should not have given those reports the weight that it gave them once admitted.

9 Although the Guardianship Tribunal is not bound by the rules of evidence, those rules provide useful guidance in determining the admissibility and weight of evidence. In accordance with the Evidence Act 1995 and in particular s 56, all evidence which is relevant and probative is admissible unless some rule of exclusion applies. Opinion evidence, such as that given by medical practitioners, is not admissible unless the witness has specialised knowledge based on his or her training, study or experience and the person’s opinion is wholly or substantially based on that knowledge. (Evidence Act 1995 s 76 and s 79.) In this case the appellant LC did not suggest that the medical practitioners lacked the necessary training, study or experience to provide an expert opinion or that the opinions expressed were not wholly or substantially based on their knowledge.

10 Once expert evidence has been admitted into evidence, the question arises as to the weight it should be given. The principles in relation to the weight of expert evidence, where bias is alleged, were set out by the Supreme Court of Victoria, Court of Appeal in FGT Custodians Pty Ltd (Formerly Feingold Partners Pty Ltd) v Fagenblat [2003] VSCA 33 at [4] to [7] per Ormiston JA with whom Chernov and Eames JJA agreed at [4] – [7]. (See also Kirch Communications Pty Ltd v Gene Engineering Pty Ltd, [2002] NSWSC 485 and Collins Thomson Pty Ltd (in liq) v Clayton [2002] NSWSC 366.) In relation to alleged bias or interest of an expert witness, those principles can be summarised as follows:

a) once expert evidence has been admitted the weight to be given to that evidence depends, in part, on its reliability;

b) reliability has two components: the qualifications and experience of the expert and bias or interest by reason of conduct or other circumstances.

11 The qualifications or experience of the expert witnesses was not in issue. Neither did LA point to any bias or interest by reason of conduct or other circumstances that would have justified giving a low weight to the evidence of medical practitioners. Consequently that ground of appeal does not disclose a question of law.

Procedural fairness

12 The rule of procedural fairness which is relevant to LA’s fifth ground of appeal is the hearing rule. That rule requires a decision maker to hear a person before making a decision affecting his or her interests. Two components of that rule relevant to this case are that a person whose interests are affected by a decision be given adequate notice of the hearing and that they be given an adequate opportunity to be heard.

13 A preliminary question arises in this case as to whether LC’s son is entitled to submit that there has been a breach of procedural fairness in relation to the Tribunal’s treatment of his mother. There is authority for the proposition that denial of a fair hearing is personal to the party aggrieved and cannot be challenged by others. (See HWR Wade and CF Forsyth, Administrative Law (3th ed, OUP, Oxford, UK, 2000), pp 504 – 505 citing Durayappah v Fernando [1967] 2 AC 337.) This question was not raised by any of the respondents; so we have gone on to determine the substantive issue. Because we have decided that there has been no breach of procedural fairness in this case, it is unnecessary to determine the preliminary question. Our reasons for concluding that there has been no breach of procedural fairness are set out below.

Reasonable notice of the hearing

14 Notice rule. One aspect of the hearing rule is that parties be given reasonable notice of the time, date and location of the hearing. (Hopkins v Smethwick Board of Health (1890) 24 QBD 712 at 715.) This requirement is reflected in s 25I of the Act which relates to an application for a financial management order. Pursuant to that provision, the applicant (in this case LC’s daughter, LB) must serve a copy of the application on each party to the proceedings. A copy of the application must be endorsed with a notice specifying the time, date and place set down for hearing the application. This requirement is qualified by s 25I(5) which states that a failure to serve a copy of the application in accordance with s 25I does not vitiate a decision of the Tribunal on the application. Since we have concluded that there has been no breach of either s 25I or the notice rule, it is unnecessary to determine what the effect of any such breach would have been. (See PRA v MA Supreme Court of Victoria Court of Appeal per Ormiston, Batt and Buchanan JJA [4 March 2004].)

15 Evidence that notice was given. In this case LC’s daughter, LB filed an application for a financial management order with the Guardianship Tribunal on 22 March 2004. The Statement of Service of Notice of Hearing completed by LB states that she served the Notice of Hearing on LC personally on 28 March 2004. In addition, on 24 March 2004, the Guardianship Tribunal sent a letter to LC, care of the nursing home at which she resides, notifying her that there would be a hearing on 1 April 2004. That letter included the comment that, “It is important you come to this hearing.” The Guardianship Tribunal organised for the Director of Nursing at the residential accommodation where LC resides to provide the Appeal Panel with a letter dated 21 July 2004. That letter states that the Director of Nursing showed LC the letter from the Guardianship Tribunal dated 24 March and explained to her what the letter meant.

16 Conclusion. On the basis of this evidence, which was not disputed, we are satisfied that LC received reasonable notice of the hearing and there was no breach of s 25I or the notice rule.

Opportunity to be heard

17 A second aspect of the hearing rule is that a decision maker must hear a person before making a decision affecting their interests. Normally a person is entitled to attend the hearing in order to make relevant submissions, give evidence and call witnesses. However, as with the notice rule, this rule must be applied in a way which is “appropriate and adapted to the circumstances of the particular case”. (Kioa v West (1985) 159 CLR 550 per Mason J at 585.)

18 The High Court has acknowledged that an unqualified application of the rules of procedural fairness may frustrate the purpose for which the jurisdiction is conferred. In J v Lieschke (1987) 69 ALR 647 Brennan J noted at 653 that:

In some custody proceedings, some qualification of the principles of natural justice may be necessary in order to ensure paramountcy to the welfare of the child; for example, it may be necessary to keep a welfare report confidential, as in Re K and as provided for in s 89(3) of the Act. But a desire to promote the welfare of the child does not exclude application of the principles of natural justice except so far as is necessary to avoid frustration of the purpose for which the jurisdiction is conferred: see Re JRL; Ex parte CJL (1986) 60 ALJR 528; 66 ALR 239.

19 The content of the hearing rule depends, in part, on the statutory context in which the decision is being made. (Mobil Oil Australia Pty Ltd v FCT (1963) 113 CLR 475 at 403-504.) The statutory context in this case includes the fact that:

· the interests of the person who may be the subject of an order, are to be given paramount consideration (s 4(a) of the Act);

· the views of the subject person should be taken into consideration when the Guardianship Tribunal is exercising its functions;

· a subject person may “adduce, orally or in writing, to the Tribunal such matters, and address the Tribunal on such matters, as are relevant to the proceedings” (s 59); and

· the Tribunal may order that the subject person be separately represented in proceedings before it (s 53(3)).

20 These provisions are all consistent with the subject person being given an opportunity to give evidence at an oral hearing, including evidence of their views, prior to any decision being made affecting their interests.

21 As well as the statutory context, the content of the hearing rule depends on the seriousness of the consequences involved. (Gribbles Pathology (Vic) v Cassidy (2002) 122 FCR 78 at 100.) Removing a person’s right to manage their own financial affairs is an extremely serious step. However, regardless of the seriousness of the consequences, other factors may be relevant. (Chen Zhen Zi v Minister for Immigration and Ethnic Affairs (1994) 48 F RF 591 at 600-601.) Another factor which is relevant in proceedings involving an application for a financial management order is that the person who is potentially the subject of an order is allegedly not capable of managing his or her financial affairs. Some of the reasons that a person may be incapable of managing their affairs are that they have dementia, brain damage or a mental illness. Those factors, and the manner in which they affect a person’s ability to attend and participate in a hearing, are relevant in determining the content of the hearing rule.

22 In this case, when the Director of Nursing received notification of the hearing from the Guardianship Tribunal, she offered to take LC to the Tribunal hearing if she wanted to go. She told the Guardianship Tribunal that LC “appeared confused as to why she had to go to the tribunal and when I explained she stated that her daughter looked after that.” The Director of Nursing then states that she telephoned the Guardianship Tribunal and told them that it might be unsettling for LC to attend the hearing, but that she was happy to bring her to the hearing if that was required.

23 Dr P Craig, one of LC’s treating doctors, made some notes on 25 March 2004 which include the comment that “it would be psychologically intolerable . . .and unnecessarily cruel to subject her to an appearance” at the Guardianship Tribunal. At p 37 of the transcript, the presiding member stated that:

. . . we have accepted on the evidence that it’s not appropriate to have (LC) attend a hearing or subject her to attempting to give evidence or indeed deal with the distress that would be involved with both her children here and the obvious difficulties there . . .

. . . in terms of simply talking to her on the telephone, we’re not satisfied that anything she said to us, we could rely upon so we’re not going to subject her to that, either.

24 In its reasons for decision, the Guardianship Tribunal observed that:

On the basis of the evidence as to LC’s dementia the Tribunal was satisfied she could not participate in the proceedings and indeed in view of LC’s advanced age, dementia and the conflict between her son and daughter the Tribunal was satisfied it would not be in her interests to attend the hearing.

25 All that is required for compliance with the hearing rule is that the subject person be given a reasonable opportunity to attend. In the case of a person who lacks capacity to organise themselves to attend a hearing, that opportunity may include making arrangements for the person to be brought to the hearing. But attendance at a hearing will serve no purpose unless the person is willing and able to participate in the proceedings, even if that participation is limited. If the Guardianship Tribunal has sufficient probative evidence to satisfy itself that the subject person is physically, mentally or emotionally unable or unwilling to attend and participate in the hearing, or that for some other reason it would not be in the person’s best interests for them to do so, there will be no breach of the hearing rule by reason of their non-attendance. That statement must be qualified where the unwillingness or inability to attend is temporary or can be overcome by some form of reasonable accommodation. In those cases the Tribunal should consider options such as vacating or re-locating the hearing or arranging for the person to participate by phone.

26 While not necessarily accepting that it would be “psychologically intolerable” for LC to attend the hearing, the Guardianship Tribunal concluded that LC could not participate in the proceedings, either in person or by phone. That conclusion was open to it on the evidence and there were no reasonable alternatives in terms of accommodating LC’s needs. In those circumstances we are satisfied that the Guardianship Tribunal gave LC a reasonable opportunity to be heard and there was no breach of the rules of procedural fairness in that respect.

Considering the views of the subject person

27 The final question raised by LA’s last ground of appeal is whether the Guardianship Tribunal has complied with the principle in s 4(d) of the Act to take into consideration the views of the subject person when exercising its functions. 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

28 The Guardianship Tribunal is exercising its functions under the Act when determining an application for a financial manager. Section 25G sets out the grounds for making a financial management order:

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.

29 Once the Tribunal makes a financial management order, s 25M gives the Guardianship Tribunal power to either:

(a) appoint a suitable person as manager of that estate, or

(b) commit the management of that estate to the Protective Commissioner.

30 The Guardianship Tribunal did not mention LC’s views either during the course of the hearing or in its reasons for decision. At [23] and [24] above we have quoted the Guardianship Tribunal’s comments at the hearing and in its reasons for decision, as to why LC did not attend either in person or by phone. The transcript at page 8 discloses that the presiding member made the following comments in the course of the hearing:

So, we’re accepting that as perhaps not in (LC’s) interests that she be brought to the hearing, or indeed that, in view of her degree of dementia, that she be able to participate in the proceedings and give evidence that would be reliable.

31 These comments make it clear that the Guardianship Tribunal did not regard LC as being able to make any reliable contribution to the proceedings. The question arises as to whether this is sufficient to comply with the principle in s 4(d). The answer to that question depends on what s 4 of the Act requires of the Guardianship Tribunal in this case.

32 Although the words of s 4 impose a “duty” on the Guardianship Tribunal, that duty is to observe various principles. The case law in relation to analogous statutes provides some guidance as to the significance of statutory principles when determining whether a court or Tribunal has made an error of law in coming to its ultimate decision. For example, in Re Oscar [2002] NSWSC 453, the Supreme Court (Hamilton J) rejected a submission that a substantive provision of the Children and Young Persons (Care and Protection) Act 1998 may be overridden by a principle in that Act. The relevant principle in s 9(a) of the Children and Young Persons (Care and Protection) Act 1998 is that “the safety, welfare and well-being of the child or young person must be the paramount consideration.” It was submitted that since the orders made by the Local Court in the first instance were in the child’s best interests, the orders were justified whether or not they were validly made. In rejecting that submission, Hamilton J noted that while s 9(a) requires courts to treat the interests of the child as the paramount consideration in coming to a decision, that decision must be made within the statutory limitations of the Act. An invalid determination could not be made valid merely because it was in the best interests of the child.

33 In Re Fernando; Re Gabriel [2001] NSWSC 905, the Supreme Court examined the effect of the principles in s 9 of the Children and Young Persons (Care and Protection) Act 1998 in a different context. In that case Bell J was interpreting s 79(3) of that Act which states, that:

The Children’s Court must not make an order allocating parental responsibility unless it has given particular consideration to the principle in section 9 (d) and is satisfied that any other order would be insufficient to meet the needs of the child or young person.

34 Section 9(d) reflects the principle relating to the “least intrusive intervention.” In the reasons for decision Bell J found that the Children’s Court had made an error of law by not having regard to the principle expressed in s 9(d), as required by s 79(3). Where there is specific reference to a principle in a substantive provision, a court or Tribunal must consider that principle if it is to avoid making an error of law. The question in the present case is whether a court or Tribunal will have made an error if it does not advert to or comply with a principle when that principle is not specifically mentioned in the substantive provision. We were unable to find any direct authority on that question, but the decision of Windeyer J in W v G [2003] NSWSC 1170 provides some indication of the correct approach.

35 In W v G Windeyer J considered the question of whether the Guardianship Tribunal had made an error of law or fact when making a guardianship and financial management order in relation to a woman who has dementia. His Honour did not make any reference to the views of the subject person and commented at [24] that:

Section 4 sets out the general principles under which persons, including the Tribunal, must follow in exercising their functions under the Act. Principles (a) and (e) are the only ones relevant here and they are as follows:
(a) the welfare and interests of such persons should be given paramount consideration,

...

(e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised

36 Impliedly, Windeyer J did not consider the views of the subject person as being relevant to the Tribunal’s decision. Presumably that was because the subject person had dementia and her views were unreliable. This conclusion supports our view that the principles in s 4 are intended as an aid to interpreting and applying the Act as a whole and as a guide to the considerations the Guardianship Tribunal should observe when exercising its discretionary powers. The relevance and applicability of those principles will depend on all the circumstances of the case. In IF v IG & Ors [2004] NSWADTAP 3 at [28] the Appeal Panel noted that when making a decision in accordance with a substantive provision, “the Guardianship Tribunal may be guided by one or more of the general principles that underpin the legislation which are set out in s 4 of the Guardianship Act 1987.” (See also MAW v Western Sydney Area Health Service [2000] NSWSC 358 (3 May 2000) at [51].)

37 On the basis of this reasoning non-observance of principles would constitute an error of law where the principle is specifically mentioned in the substantive provision. The extent to which non-observance of the principles will amount to an error of law in other cases is not clear. In accordance with the approach taken by Windeyer J in W v G, it may not be an error of law to fail to consider the views of the subject person where there is evidence that those views would be unreliable. That is the approach we have taken in this case.

38 While the Tribunal may not make an error of law if it fails to specifically refer to or apply a principle in s 4, it is desirable for it to observe those principles to the greatest extent that is possible and appropriate in the circumstances. In relation to the principle of taking the views of the subject person into consideration, that will normally involve eliciting those views. As we have said, the Guardianship Tribunal did not mention LC’s views either during the course of the hearing or in its reasons for decision. If the Tribunal considered that it was not possible or appropriate to elicit those views, then it would have been desirable for it to explain its reasons for that conclusion. However, it did not make an error of law by failing to do so.

Extension to the merits

39 There being no error of law, the next question for the Appeal Panel is whether to grant leave to hear the 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. 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

The decision of the Guardianship Tribunal is affirmed.