LZ v NSW Trustee and Guardian (No 2)
[2012] NSWADTAP 47
•20 November 2012
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: LZ v NSW Trustee and Guardian (No 2) [2012] NSWADTAP 47 Hearing dates: 10 October 2012 Decision date: 20 November 2012 Jurisdiction: Appeal Panel - External Before: Magistrate N Hennessy, Deputy President
Ms C Huntsman, Judicial Member
Dr B Field, Non-Judicial MemberDecision: 1. The decision of the Guardianship Tribunal to make a guardianship order relation to LZ is affirmed.
2. The appeal on a question of law is dismissed.
3. Leave is refused for an appeal to proceed on any other ground.
Catchwords: EXTERNAL APPEAL - decision of Guardianship Tribunal to make a guardianship order - refusal of adjournment - subject person not present at hearing to express views - whether denial of procedural fairness Legislation Cited: Administrative Decisions Tribunal Act 1997
Guardianship Act 1987Cases Cited: S v Public Guardian and Ors [2007] NSWADTAP 42 at [20];
IZ v JC, JB, JA [2009] NSWADTAP 4
Touma v Saparas [2000] NSWCA 11
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
FA v Protective Commissioner & Ors [2009] NSWSC 415
Chen Zhen Zi v Minister for Immigration and Ethnic Affairs [1994] FCA 985; (1994) 48 FCR 591
Azzopardi v Tasman UEB Industries Ltd (I985) 4 NSWLR 149;
Ormwave Pty Ltd v Smith [2007] NSWCA 210; 5 DDCR 180
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390
Mobil Oil Australia Pty Ltd v FCT [1963] HCA 41; (1963) 113 CLR 475
IF v IG & Ors [2004 NSWADTAP 3
The Queen v Lewis (1988) 165 CLR 12
Re Toohey and Another; Ex parte Meneling Station Pty Ltd and Ors (1982) 158 CLR 327 Weal v Bathurst City Council [2000] NSWCA 88
Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456
K v K [2000] NSWSC 1052;
S v S [2001] NSWSC 146
Re R [2000] NSWSC 886Texts Cited: Aronson, Dyer and Groves, Judicial Review of Administrative Action, Lawbook Co 2009 4th ed Category: Principal judgment Parties: LZ (Appellant)
NSW Trustee and Guardian (1st Respondent)
Imelda Dodds (2nd Respondent)
Guardianship Tribunal (3rd Respondent)Representation: Counsel
P Macarounas (Appellant Guardian ad litem representative)
LZ (Appellant),B Ramjan (Appellant Guardian ad litem)
L Williams (1st respondent)
A Sprouster (Guardianship Tribunal)
File Number(s): 128005 Publication restriction: s 126 of the Administrative Decisions Tribunal Act 1997 applies. Decision under appeal
- Citation:
- 2011/7743
- Before:
- Magistrate N Hennessy, Deputy President
Ms C Huntsman, Judicial Member
Dr B Field, Non-Judicial Member- File Number(s):
- C/31088
REASON FOR DECISION
Introduction
LZ has appealed against a decision by the Guardianship Tribunal to make a guardianship order and appoint the Public Guardian to make decisions on her behalf. Those decisions include decisions about her accommodation, the services she should receive and her health care. An appeal may be made on a "question of law" and will be upheld if the Guardianship Tribunal has made a legal error that affects the decision. We have not found any legal error. We also refuse permission for LZ's counsel to bring an appeal on grounds other than a question of law.
This Tribunal appointed a guardian ad litem for LZ: Administrative Decisions Tribunal Act 1997, s 71(4). The guardian ad litem instructed counsel.
Background
In 1979 LZ was injured in a car accident. In 2003, she received compensation for the injuries she sustained. LZ's solicitors applied for her financial affairs to be managed by the body which is now the NSW Trustee and Guardian. At that time, LZ was making her own decisions about where she would live and the health and other services she would receive. In 2005, the Guardianship Tribunal appointed LZ's brother to be her guardian for 6 months to make decisions about her accommodation and services. At that time, LZ was an involuntary patient at Manly Hospital. That order has lapsed.
In September 2011 Ms Imelda Dodds, Chief Executive Officer, NSW Trustee and Guardian, applied to the Guardianship Tribunal for a guardianship order in relation to LZ. In that application Ms Dodds wrote that she was concerned about the state of repair of LZ's home and that LZ's safety may be at risk. Ms Dodds was also concerned that LZ had not had any psychiatric treatment for several years and had refused support services.
The Guardianship Tribunal appointed a solicitor to act as a separate representative for LZ: Guardianship Act, s 58(3). The application was listed for hearing on 20 February 2012. LZ attended the hearing with her separate representative and voiced her views about various legal proceedings in which she was involved. She emphasised that she would not let anyone come onto her property without telling her what was going on. LZ tendered two recent medical reports, one from Dr Patrick Tan, a geriatrician, and the other from Dr Jensen Mak, a general practitioner, attesting to her mental state and cognitive ability. After LZ gave evidence, the Tribunal heard from Ms Gibson, representing the applicant, Ms Dodds. Ms Wong, the NSW Trustee and Guardian's senior disability advisor, also gave evidence.
After hearing that evidence, the Tribunal adjourned the hearing for three months to obtain up to date medical evidence in relation to LZ's decision making capacity: Guardianship Act, s 3(2).
In a decision following the February 2012 hearing, the Guardianship Tribunal gave reasons for adjourning the application. It also recited the evidence it had heard without making any findings. That evidence related to LZ's views about the application, whether LZ has a disability which prevents her from being able to make important life decisions and whether the Guardianship Tribunal should exercise its discretion to make a guardianship order: Guardianship Act, s 14. The Tribunal adjourned the matter but indicated that it was not part-heard.
The adjourned hearing was set down for 21 May 2012 and a new three member panel was appointed. The new panel included the same professional member who had sat on the first hearing, a new presiding member and a new community member. The presiding member said, towards the beginning of the second hearing, that:
This is not a part-heard adjournment so we do need to start from scratch to some extend today, but you can take it as read that the Tribunal has read the documents that have preceded this hearing or have been presented in preparation for this hearing." (Transcript: p 3, line17-20).
Although the new panel had a copy of the first panel's reasons for decision, it made only one passing reference to them in its reasons. LZ's counsel did not submit that the reconstitution of the panel, when the matter was apparently part-heard, constituted a breach of procedural fairness.
After the second hearing, the Guardianship Tribunal made a guardianship order in relation LZ and appointed the Public Guardian to make decisions about:
(1) accommodation, with power to authorise others to enforce any accommodation decision;
(2) services, with power to override any objection to the provision of services;
(3) health care; and
(4) consent to medical and dental treatment.
Grounds of Appeal
Following clarification at the hearing, the grounds of appeal on questions of law are:
(1) Did the Guardianship Tribunal afford LZ procedural fairness?
(2) Did the Guardianship Tribunal fail to take into account LZ's views as required by s 14 of the Guardianship Act 1987?
(3) Was the Guardianship Tribunal's finding that LZ had a disability and was "totally or partially incapable of managing her person" made without evidence or without adequate evidence?
To the extent that the appeal raises issues other than questions of law, LZ's counsel sought leave to appeal: ADT Act, s 118B(1)(b).
Procedural fairness
Introduction
According to LZ's counsel, the Guardianship Tribunal did not giver her a fair hearing because it refused her application to adjourn the second hearing. That meant that she was not present at the adjourned hearing in May 2012 to express her views about the application in person, to question Dr Mak who gave evidence by phone, to cross-examine Ms Dodds as requested or to respond to assertions that she had been engaged in unmeritorious or vexatious litigation. According to LZ's counsel, given that the Guardianship Tribunal was considering whether or not to deprive her of the right to make her own decisions, it should not have done so without her being present.
Appealable decision?
The Guardianship Tribunal's decision not to adjourn the application for a guardianship order was made under s 64(1) of the Guardianship Act:
The Tribunal may from time to time adjourn its proceedings to such times, dates and places, and for such reasons, as it thinks fit.
The Appeal Panel does not have jurisdiction to hear an appeal against a decision to adjourn proceedings: ADT Act, s 118A and Guardianship Act s 67A; S v Public Guardian and Ors [2007] NSWADTAP 42 at [20]; IZ v JC, JB, JA [2009] NSWADTAP 4 at [12]. The Appeal Panel does have jurisdiction to hear and determine an appeal against a decision under s 14 of the Guardianship Act to make a guardianship order. That is the decision against which LZ's counsel has appealed. We understand LZ's counsel's submission to be that the Guardianship Tribunal was not procedurally fair when making that decision. That does not amount to an appeal against the decision to refuse to adjourn, but the adjournment decision is relevant to the question of whether there has been a denial of procedural fairness.
Rules of procedural fairness
The rules of procedural fairness require that persons be given a fair and unbiased hearing before decisions are taken which affect their interests: Aronson, Dyer and Groves, Judicial Review of Administrative Action, Lawbook Co 2009 4th ed, at 403. The refusal of an adjournment may amount to a denial of procedural fairness if it is likely to deny a party a reasonable opportunity to present his or her case: Touma v Saparas [2000] NSWCA 11 at [27].
There is no statutory requirement in the Guardianship Act to observe the principles of procedural fairness. The Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks fit: Guardianship Act, s 55(1). The absence of a statutory requirement does not mean that those rules do not apply to the Tribunal: Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 584.
Adjournment application
The hearing was scheduled for 21 May 2012. LZ phoned the Registry on 4 May, seventeen days before the hearing, and said that she wanted the hearing to be adjourned because she was busy with other litigation. She refused, at that stage, to put her application in writing. Eleven days later, on 15 May 2012, the Tribunal received a letter from LZ requesting an adjournment. The reason she gave was that she had another case listed on 22 May, the day after the Guardianship Tribunal hearing, and she was busy preparing documentation for that hearing. The Guardianship Tribunal did not vacate the hearing date.
LZ's separate representative contacted LZ prior to the hearing to discuss her application for adjournment. He reported the details of that conversation to the Guardianship Tribunal.
The Presiding Member telephoned LZ during the hearing to find out whether she was prepared to participate by phone. LZ said that she had "had a gutful of you" and to "stop your lies." After LZ hung up, the Presiding Member concluded that she was not prepared to participate in the hearing either in person or by telephone on that day.
The Tribunal took into account four matters put forward by LZ in support of her application for an adjournment:
(1) too busy because of other litigation commitments including a hearing the following day for which she was preparing;
(2) transport difficulties;
(3) late notice of hearing; and
(4) suggestions of conspiracy between the Tribunal and her neighbour.
On appeal, LZ's counsel accepted that the Guardianship Tribunal was correct not to take into account any allegation of a conspiracy between the Guardianship Tribunal and LZ's neighbour. However, counsel submitted that the Guardianship Tribunal should not have rejected LZ's reason that she was too busy with other litigation to attend the Tribunal.
Considerations
The factors which should be taken into account in determining whether procedural fairness has been denied include:
(1) the potential consequences for LZ if the Guardianship Tribunal made a guardianship order;
(2) the period of notice LZ had of the hearing;
(3) the legitimacy of any reason for her non-attendance;
(4) the likelihood that she would attend an adjourned hearing;
(5) the urgency of the matter;
(6) the statutory context, including the requirement that the Guardianship Tribunal take LZ's views into account; and
(7) the Guardianship Tribunal's compliance or non compliance with its statutory obligations.
The potential consequences for LZ
The jurisdiction of the Tribunal includes power to appoint substitute decision makers to make decisions about a person's personal affairs. Those decisions deprive the person concerned of the right to make independent decisions about matters such as where they will live and what health care that will receive. Decisions of that kind should not be made "unless there is a strong and cogent reason for doing so, directly founded upon the demonstrated mental incapacity of the subject to care, or make appropriate decisions, for himself or herself": FA v Protective Commissioner & Ors [2009] NSWSC 415 at [11] per Palmer J.
The extent to which a person who is the subject of such an application should participate in the decision making process increases "in proportion to the seriousness of the consequences involved": Aronson and Dyer Judicial Review of Administrative Action, 4th ed, LBC Information Services at 534.
The potential consequences for LZ if a guardianship order is made, are extremely significant. Such an order would deprive her of her freedom to make her own decisions about where she lives and what health and other services she receives. There is also potential for the Guardianship Tribunal to authorise the use of coercive powers to enforce any decision. The fact that the potential consequences are extremely significant means that LZ should be permitted to participate in the hearing to the maximum extent practicable. It does not mean that an order cannot be made in her absence.
Notice of the hearing
One of the reasons LZ applied for an adjournment was that she did not receive formal notice of the hearing until Friday 18 May, two days before the hearing. While the Tribunal did not make a finding as to when LZ received that notice, it was satisfied that she knew the date and time of the hearing at least by 4 May.
LZ's counsel did not challenge the correctness of that finding.
The legitimacy of any reason for her non-attendance
One reason LZ gave for not being able to attend the hearing was that she was involved in litigation on the day after the hearing. The Tribunal found that LZ is 'regularly involved in litigation' and was not persuaded that an adjournment was justified on that basis.
The Tribunal is not satisfied that the fact that LZ was involved in litigation on the day after this hearing is a matter that ought to persuade this Tribunal that an adjournment is necessary on this occasion. The Tribunal notes that the matter has been previously adjourned in any event and this is the second hearing of the substantive matter. The Tribunal accepts the evidence of the applicant that LZ is regularly involved in litigation and that there could be no guarantee that an adjournment would rectify [LZ]'s stated difficulty.
On appeal, LZ's counsel submitted that the Guardianship Tribunal rejected LZ's contention that she was involved in other litigation. That is not the case. The Guardianship Tribunal did not find that LZ was not involved in litigation or was not occupied preparing for that litigation.
The likelihood that LZ would attend an adjourned hearing
The Tribunal stated that it was "not satisfied that an adjournment would increase the likelihood of LZ's attendance on the next occasion." That view is also reflected in the following question asked by a member to LZ's separate representative at the hearing: "[Would] the adjournment actually produce a different result to the one that we are experiencing today?" LZ's counsel submitted that that comment referred to the likelihood that the Guardianship Tribunal's decision would be the same whether LZ attended or not. Reading the comment in context, we do not understand that to be what the member meant. Rather, the member was inquiring as to the likelihood that LZ would attend on the next occasion if the hearing were adjourned.
The likelihood that LZ would attend on the next occasion if the hearing were adjourned, was a relevant consideration for the Guardianship Tribunal to have taken into account in determining whether to grant the adjournment.
Urgency
Courts and commentators have recognised that regardless of the seriousness of the consequences of a decision, other factors such as the need for urgency and considerations of cost and efficiency are also relevant: Chen Zhen Zi v Minister for Immigration and Ethnic Affairs [1994] FCA 985; (1994) 48 FCR 591 at 600-601 per Black CJ, Lee and Heerey JJ; Aronson & Dyer at 537-539.
The Guardianship Tribunal was satisfied that LZ had been given adequate notice of the hearing and had had an opportunity to present evidence if she chose to do so. Having satisfied itself of that matter, the Tribunal went on to deal with the question of urgency:
In any event, the Tribunal is satisfied that there is sufficient evidence of imminent risk to [LZ] to override any concerns about a breach of procedural fairness. The applicant has provided evidence that [LZ] is living in a house which is considered by the council and by a building inspector to be extremely unsafe. . .
The Tribunal finds that the risk to [LZ]'s safety and well-being that would arise from an adjournment of this application would be unacceptable. Accordingly the Tribunal denies [LZ]'s request for an adjournment.
LZ's counsel submitted that:
(1) the finding that the house was unsafe underpinned the refusal of the adjournment application;
(2) that finding was inconsistent with the finding of the Tribunal at the first hearing in February; and
(3) the finding was based on 'no evidence'.
While urgency was a factor in the Guardianship Tribunal's decision not to adjourn the application, it is not accurate to say that it 'underpinned' that decision. The Tribunal found, without any reference to urgency, that LZ had been given adequate notice of the hearing and had had an opportunity to present evidence if she chose to do so.
On the question of inconsistency, the Tribunal found, following the first hearing, that "there was insufficient urgency or threat to [LZ]'s safety" to make a temporary or short-term guardianship order so that a medical assessment could be arranged." Counsel for LZ on appeal submitted that this finding was inconsistent with the later finding that the fact that LZ's house was unsafe justified going ahead with the hearing despite her non-attendance.
The second hearing was a fresh hearing. Findings made in the context of considering whether to make a temporary order following the first hearing are not binding on the panel hearing the matter de novo on the second occasion.
The final point made by LZ's counsel in relation to urgency was that the Guardianship Tribunal's finding was based on 'no evidence'. While this was not expressed as a separate ground of appeal on a question of law, making a finding based on 'no evidence' or no probative evidence, may be an error of law sufficient to justify the Tribunal's decision being set aside: Azzopardi v Tasman UEB Industries Ltd (I985) 4 NSWLR 149 at I55-156; Ormwave Pty Ltd v Smith [2007] NSWCA 210; 5 DDCR 180 at [14] per Beazley JA, with whom Santow and Ipp JJA agreed; Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 at [90].
The finding that the house was extremely unsafe and posed an imminent risk to LZ was based on the following evidence:
(1) a letter from Pittwater Council dated 14 July 2011 to LZ responding to her concerns in relation to scaffolding erected at the rear of her premises and fill/vegetation continually pushed up against the rear boundary fence;
(2) a report from NSW Trustee and Guardian dated 23 September 2011 stating, among other things, that:
Throughout management the Trustee has faced challenged in gaining [LZ]'s co-operation to affect (sic) necessary repairs to her home to comply with Pittwater Council's requirements.
(3) six photographs of LZ's home;
(4) oral evidence from Ms Gibson including that:
. . . the risk posed by the state of her property remains current and immediate. Our client herself has admitted that the property is not safe and it certainly could be seen to breach duties of care across a whole lot of different organisations, that an elderly lady suffering from a mental illness is living in a property where the builders, the council, the neighbours and the TaGs - the trustee's own officers - have said that it is unsafe for occupancy. At the - I don't know whether you recall seeing the photos, but the front veranda is held up with scaffolding. There is no veranda at all outside the doors leading from the lounge room, so you literally fall several metres if the doors are open. .
LZ's counsel noted that there was no documentary evidence from builders, council or the police to the effect that the house was unsafe or required structural repairs. While that is correct, there was some evidence, including the photographs and the oral evidence from Ms Gibson, as to the state of repair of the house. It cannot be said that there was 'no evidence' or 'no probative evidence' to support the Guardianship Tribunal's finding.
The statutory context
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] HCA 41; (1963) 113 CLR 475 at 403-504.) The statutory context in this case includes the fact that:
(1) the interests of the person who may be the subject of an order, are to be given paramount consideration: Guardianship Act, s 4(a);
(2) the views of the subject person should be taken into consideration when the Guardianship Tribunal is exercising its functions; s 4(d)
(3) the Tribunal "shall have regard to the views of the person" when making a guardianship order: s 14(2)(a)(i)
(4) 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
(5) the Tribunal may order that the subject person be separately represented in proceedings before it: s 53(3).
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.
Section 14(2) of the Guardianship Act provides that, in considering whether or not to make a guardianship order, the Tribunal shall have regard to certain matters including the views of the person. The Tribunal's consideration of the matters in s 14(2) arises after the Tribunal has decided that a person meets the statutory definition of "a person in need of a guardian." That term is defined in s 3 to mean: "a person who, because of a disability, is totally or partially incapable of managing his or her person."
Having made that finding, the Guardianship Tribunal must undertake the second step in the process of determining whether to appoint a guardian. The Tribunal must consider each of the matters set out in s 14(2) before exercising its discretion: IF v IG & Ors [2004 NSWADTAP 3 [22]-[31].
Compliance with statutory obligations
In relation to obtaining LZ's views, the presiding member telephoned LZ on the morning of the hearing. The Guardianship Tribunal was prepared to allow LZ to participate in the hearing by phone. LZ refused to do so, but made her view clear that she opposed any intervention by way of a guardianship order.
The Guardianship Tribunal appointed a separate representative for LZ. A separate representative is a lawyer who seeks the views of the subject person and presents those views to the Tribunal. But the lawyer is not bound to make submissions that are consistent with those views. He or she must made submissions which are in the person's best interests, whether or not that is what the person wants: Guardianship Tribunal Practice Note No 1 of 2009.
In accordance with his role, the separate representative conveyed LZ's views to the Guardianship Tribunal at the hearing:
I spoke to [LZ] at length last night. She wants the application dismissed or adjourned. There is nothing wrong with her capacity. "The only person who needs help is my next door neighbour." She believes she should not be under guardianship or financial management.
The Tribunal made no express reference to the separate representative's expression of LZ's views in its decision. Instead, the Tribunal stated that;
[LZ] refused to attend the hearing or talk to the Tribunal to present her views.
Despite the fact that LZ did not convey her views to the Tribunal in person, we are satisfied that the Tribunal knew that LZ opposed the making of a guardianship order. That is clear from the telephone conversation with LZ and the submissions of the separate representative. It is also supported by the fact that the Presiding Member made the following comment when she spoke by phone to the Duty Guardian at the NSW Trustee and Guardian:
So we think that - and she's expressed to us this morning her opposition to anything to do with the Tribunal and there is well-documented history and evidence before the Tribunal, which it accepts, that [LZ] is adamantly opposed to any intervention, even if it is patently in her best interests.
As the matter was being heard afresh, the Tribunal rightly did not take into account the evidence LZ gave in the first hearing in February: The Queen v Lewis (1988) 165 CLR 12 at 15.
It follows that we are satisfied that despite not expressly referring to LZ's views in its reasons for decision, the Guardianship Tribunal had unequivocal evidence of those views.
Three other matters that LZ said were examples of denials of procedural fairness were that she was denied the opportunity to cross-examine Dr Mak or Ms Dodds, to respond to assertions that she had been engaged in unmeritorious or vexatious litigation.
LZ's separate representative was representing LZ's best interests at the hearing. He did not cross-examine Dr Mak, whose evidence was, in general terms, favourable to LZ. Ms Dodds was the applicant. She did not attend the hearing in person but was represented by Ms Gibson, Manager, and Ms Wong, the NSW Trustee and Guardian's senior disability advisor. The Tribunal made no finding that LZ was engaged in unmeritorious or vexatious litigation and, in any case, her separate representative was present to represent her best interests.
Conclusion
The Guardianship Tribunal gave LZ a fair hearing. Decisions about guardianship applications are extremely serious matters and, where practicable, such decisions should not be made without the person being given an opportunity to provide their views and to participate in the hearing. Refusing her application for an adjournment meant that LZ was not present at the hearing. But her views were known and taken into account, a separate representative was present to advocate in her best interests, there was no guarantee that she would attend an adjourned hearing and there was some urgency. Those matters satisfy us that the Guardianship Tribunal acted in a procedurally fair manner.
Ground 2 - Did the Guardianship Tribunal fail to take into account LZ's views as required by s 14 of the Guardianship Act 1987?
We have considered this issue, in part, above. It is arguable that by failing to record LZ's views in its decision, the Guardianship Tribunal did not take them into account. We are satisfied that the Tribunal knew that LZ was adamantly opposed to the making of a guardianship order. We are also satisfied that the Tribunal took those views into account when making the order: Re Toohey and Another; Ex parte Meneling Station Pty Ltd and Ors (1982) 158 CLR 327 per Gibbs CJ at 333 [5]; Weal v Bathurst City Council [2000] NSWCA 88.
Ground 3 - finding of disability and incapacity without evidence
LZ's counsel submitted that the Guardianship Tribunal had found, without any evidence, that she was a 'person in need of a guardian". That term is defined in s 3 to mean a person who, "because of a disability, is totally or partially incapable of managing her person". As we have said, making a finding based on 'no evidence' or no probative evidence, may be an error of law sufficient to justify the Tribunal's decision being set aside. We agree that no recent medical reports were provided to support the application for guardianship. The recent reports from Dr Mak and Dr Tan tendered by LZ were based on a single visit. Dr Mak diagnosed "probable type A personality trait +/- delusional thought" but concluded that LZ was competent to make financial and general decisions. When giving oral evidence to the Guardianship Tribunal, Dr Mak expressed the view that LZ may have a thought disorder but he said further investigation was required.
In her application Ms Dodds, referred to a Guardianship Tribunal decision in 2005. At that time the Tribunal found, on the basis of evidence from two psychiatrists including Dr Andre Kaill, that LZ had late onset schizophrenia and was a "person in need of a guardian." The Guardianship Tribunal made a guardianship order for 6 months appointing her brother as her guardian. That order has since lapsed.
As well as the 2005 reasons for decision, the Guardianship Tribunal took into account evidence from Ms Gibson and others about LZ's paranoid ideation. It accepted a submission from the separate representative that there was sufficient evidence to conclude that LZ is paranoid and that her judgment and decision making capacity is impaired.
While we accept that the time for considering whether the subject person is a "person in need of a guardian" is at the time of the hearing, the Guardianship Tribunal had sufficient evidence of LZ's current disability and capacity to support the finding that it made. Up to date medical evidence, while the 'best' evidence of disability and incapacity, is not the only evidence that can be taken into account.
Leave to appeal on the merits
LZ's counsel also sought leave to appeal against the merits of the Guardianship Tribunal's decision. The basis for that appeal was identical to ground 3 above. If that ground did not disclose as error of law, LZ's counsel submitted that it justified leave being granted for a merits appeal.
Even if the Guardianship Tribunal has not made an error in relation to a question of law, leave can be given for an appeal to proceed on other grounds: Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456 at [60]- [61], [63]). The ADT Act does not contain any guidance on the relevant matters to be taken into account in determining whether leave should be granted. The Supreme Court has provided some guidance on this question in the cases of K v K [2000] NSWSC 1052; S v S [2001] NSWSC 146 and Re R [2000] NSWSC 886 (17 August 2000). In K v K, Young J observed at [15] that
". . .it is very unlikely that the Court will grant leave to appeal when there is a problem with a fact finding exercise unless there are clear indications that the Tribunal has gone about that fact finding process in such an unorthodox manner or in a way which is likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed."
The Guardianship Tribunal found that LZ has a disability that makes her at least partially incapable of managing her person. The finding was not based on any up to date medical evidence apart from Dr Mak's opinion that LZ has "probable type A personality trait +/- delusional thought." Dr Mak also expressed a tentative view in oral evidence that LZ may have a thought disorder. There was also a letter on file from LZ's neighbour setting out allegations consistent with paranoid behaviour. The separate representative also recounted conversations he had had with LZ which were consistent with a delusional disorder. The Guardianship Tribunal's finding as to disability was based on that probative evidence.
The Tribunal's finding of incapacity was made despite opinions to the contrary expressed by Dr Mak and Dr Tan. Ms Gibson gave evidence of the state of repair of LZ's home and the efforts the NSW Trustee and Guardian had made to engage her in the process of having it repaired. Ms Gibson said that despite their considerable efforts, they could not get LZ to agree to allowing repairs to be undertaken. LZ's separate representative submitted that LZ was paranoid and that this paranoia was impairing her judgment and decision making capacity. That evidence was probative and supported the Guardianship Tribunal's finding that LZ was partially incapable of managing her person.
Our role is to ensure that the Guardianship Tribunal has made findings of fact in a fair and orthodox manner and that the result is not unfair. We are satisfied of those matters. Consequently, there is no justification for extending the appeal to the merits of the Guardianship Tribunal's decision.
Orders
1. The decision of the Guardianship Tribunal to make a guardianship order relation to LZ is affirmed.
2. The appeal on a question of law is dismissed.
3. Leave is refused for an appeal to proceed on any other ground
**********
Decision last updated: 20 November 2012
0
18
2