McK,D v Guardianship Board of South Australia
[2015] SADC 37
•13 March 2015
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
MCK,D v GUARDIANSHIP BOARD OF SOUTH AUSTRALIA
[2015] SADC 37
Judgment of His Honour Judge Tilmouth
(Assessor Dr J Gipslis and Assessor Mr A Jackson)
13 March 2015
ADMINISTRATIVE LAW
Appeal for decision of the Guardianship upheld on the basis of procedural errors relating to rights to be present at a hearing, to cross-examine and to obtain legal representation. Decision of the Board rescinded and the matter remitted to the Guardianship Board for full consideration on the merits.
Guardianship and Administration Act 1993 (SA) s 14(6), 14(7), s14(9), s14(12a), s 32; District Court Act 1991 (SA) s 42F, s 42G(2), referred to.
Twist v Randwick Municipal Council (1976) 136 CLR; Szbyr v Minister for Immigration and Citizenship (2007) ALJR 1190, applied.
MCK,D v GUARDIANSHIP BOARD OF SOUTH AUSTRALIA
[2015] SADC 37The appeals
Before us are appeals, as we shall treat them, against orders made by the Guardianship Board on 10 October 2014, appointing McK,D’s daughter administrator of his estate as a protected person, that she be appointed his Guardian and she be given s 32 powers under the Guardianship and Administration Act 1993 (SA), to make decisions as to his place of residence.
The grounds of appeal are essentially procedural in nature. They merge by way of subject matter and evolve into questions of whether McK,D was sufficiently advised of his right to cross examine witnesses, deprived of the opportunity to be personally present before the Board, and denied an adjournment of the hearing to enable him to obtain legal representation.
Underlying facts
McK,D is a 69 year old man who lives alone. Although he owns an unencumbered Unit, he is presently in a nursing home at his daughter’s direction. He is diagnosed with dementia and chronic diabetes, amongst other things. On 22 September 2014 he was brought to the Modbury Hospital by ambulance following a delirium at home. He was detained on a Level 1 Inpatient Treatment Order after attempting to abscond and behaving in an agitated and aggressive manner. On 30 September 2014 an interim Guardianship order was made by the Board for 14 days, it being satisfied ‘that urgent action is required’ pursuant to s 14(7) of the Guardianship and Administration Act.
As that order pertained for a maximum of 14 days, notice sent by post to McK,D on 2 October 2014 advising of ‘an application to be heard on the 10th of October’. That notice contained written advice affirming the rights to legal representation and to cross-examine witnesses, among other things. There is no reason to suspect that McK,D did not receive that letter. No submission was put by his counsel to the contrary.
The hearing before the Board
When the matter came on for hearing before three members of the Board presided over by a Deputy President on 10 October, present were the daughter having the guardianship and administration orders, a Dr Eng and a Social Worker from the Modbury Hospital. McK,D ‘attended’ by telephone from a ward at the Modbury Hospital, on recommendation from hospital staff because of his ‘contrary disposition’. This arrangement appears to have been made administratively. McK,D was certainly not engaged in that process.
A number of issues arise from the transcript itself. The first is that it is not at all apparent that McK,D was ready to proceed or expected there would be a full hearing on the merits that day. This tentative view emerges from a number of exchanges, first of at the beginning of the hearing after a telephone connection was established with the Modbury Hospital and the presiding Member advised:[1]
Hi D…, it’s Cathrynne Lester calling from the Guardianship Board in Adelaide. We’ve got a hearing for you this morning about guardianship and administration and we’d like you to be involved with this hearing on the telephone.
[1] T2.8
Some minutes later McK,D expressed his understanding that there ‘is supposed to be a meeting this morning’ at 9.15am, which rather suggests he was not expecting a full hearing.[2] Towards the end of the proceedings the Board adjourned for some little time to announce their decision. As it commenced to do so he expressed further surprise, ‘so you’ve made that decision on my behalf’,[3] and at the very conclusion ‘just hanging up just like that, no consideration of what I think’.[4]
[2] T5.8-.10
[3] T24.10
[4] T26.4
The second issue which emerges is that it became clear enough that McK,D desired legal representation. There was evidence that he had more than enough money available to engage a lawyer had he wanted to, and that he had retained lawyers in the past, with respect to other matters.
Immediately after the exchange about an anticipated meeting at 9.15, a member of the Board, a legal practitioner, asked if he had made any attempts to call a lawyer. He responded ‘I tried to get through to them yesterday and my daughter tried yesterday and I don’t know how anything’s gone’.[5] It emerged that he had on 30 September, expressed a view to a social worker that ‘he wants a lawyer for the formal hearing’.[6] He had telephoned the receptionist of his previous solicitor the day before, however no further arrangements were made to secure representation, apart from speaking with his daughter.[7]
[5] T6.1-.2
[6] T6.9-.10
[7] T7.7-.8
He was then asked by the same member of the Tribunal about changing his mind as to legal representation, which he denied.[8] The Deputy President then announced:[9]
Look what we are going to do is we are going to proceed, … we feel that the applicants have done everything possible to ensure that you are aware of your legal rights. You have been aware of the hearing now for quite some time. They have reminded you about having an advocate or a lawyer here today so we are going to proceed with the hearing.
[8] T8.5-.6
[9] T8.7-.8
A third observation to make is that it is not crystal clear that McK,D understood the right to cross-examine, or to put matters in issue, despite the letter advising him that he could. It may be accepted that he was expressly advised to a point about the right to cross-examination, in these terms:[10]
And you have also got a right to ask us questions. If there are any questions you would like to ask us to answer about this process today or about administration and guardianship please ask them, ok.
[10] T4.9 (emphasis supplied)
This advice falls short of affirming the right to cross-examine witnesses at large, as it was limited to asking questions of the Board itself. There was also a risk that the invitation was taken as imposing a further constraint in that it was confined to questions about process rather than the merits. No request to question anyone, including the Board, was made.
A fourth point to note is that a number of times McK,D purported to put in issue various facts about which the Board later made adverse findings. These include ‘I’m ready to look after myself’,[11] ‘on current circumstances I’d like to run my life’,[12] on the topic of his problem-solving difficulties ‘well you seem to think that but I don’t’,[13] as to supposed poor control over problems with his heart, ‘poorly controlled, is it? Well I reckon the doctors want to put their finger into line’,[14] ‘I’m doing what my doctors say and that’s what I wanted’,[15] ‘all I want is to live in my own home with my own dog and keep it at that’,[16] and ‘I’d like them to prove that I cannot live at home’,[17] to mention the most obvious of them.
[11] T3.10
[12] T4.2
[13] T11.3
[14] T11.6
[15] T11.8
[16] T12.9
[17] T14.8
A fifth aspect of the proceedings was that it is unclear whether the telephone line was working that well. Approximately a third of the way into the hearing, McK,D complained ‘well I’m not really hearing anything’.[18] Beforehand he had said a number of things recorded simply as ‘inaudible’,[19] and there were several more such instances afterwards.[20] It follows that it is difficult to accept that for practical purposes, there was an effective hearing in relation to the matters that were agitated in which McK,D effectively participated. Just how the Board could resolve contentious issues with regard to the ‘demeanour of witnesses’ in these circumstances, as it said it did, is not readily apparent to us. We now proceed to deal with the procedural grounds of appeal compendiously.
[18] T10.8
[19] T4.5, T7.7
[20] T11.5, T12.3, T12.8, T14.7, T16.5
Procedural irregularity?
Although the proceedings before the Board are to be conducted informally, they remain governed by the rules of natural justice. In general terms those rules require reasonable notice of the subject matter of the inquiry and a reasonable opportunity to be heard in relation to the issues to be determined: Twist v Randwick Municipal Council,[21] L,J.[22] The common law conceptions of natural justice are enshrined in large part into the procedures of the Board by s 14(6) of the Guardianship and Administration Act, which reads:
[21] (1976) 136 CLR 106
[22] [2013] SADC 79 [5].
(6)The Board—
(a)must give the applicant and the person to whom the proceedings relate a reasonable opportunity to call or give evidence, to examine or cross-examine witnesses and to make submissions to the Board; and
(b)must give any other person—
(i)to whom notice of the proceedings was given; or
(ii)who satisfies the Board that he or she has a proper interest in the matter,
a reasonable opportunity to make submissions to the Board.
These rights are further enhanced by the statutory right to appear before the Board ‘personally or by counsel’, provided for in s 14(9) thereof.
We are of the view that whether or not there was adequate audible connection for a sufficient period of time between the Board and the Modbury Hospital, whether there is an absolute right to be personally present, whether there was a misunderstanding as to the nature or the scope of the proceedings that day, or as to the capacity to cross examine witnesses, those matters, in combination, in our opinion caused proceedings of the Board to miscarry.
By the time the Board had made its decision to continue, it was apparent (or should have been apparent) that McK,D had expected a different kind of proceeding, understood that it would be at the Modbury Hospital and conducted in his presence, that he expressed a desire to secure legal representation and had taken reasonable steps to achieve that end, such that the Board ought to have hesitated to proceed and adjourned the hearing. In those combined circumstances the Board ought to have been ‘satisfied that there is reason to adjourn proceedings’ referred to, within the meaning of s 14(12a) of the Guardianship and Administration Act. If it were thought necessary to proceed to make interim orders to maintain the status quo, or to keep the previous order on foot, it had the capacity to achieve that end, by making a further order in urgent circumstances, in the manner referred to earlier.
In reading this conclusion we have put to one side the issue, as to whether the proceedings miscarried anyway, because s 14(12) of the Guardianship and Administration Act enables the Board to make determinations in the absence of a party to the proceedings, only ‘if it is satisfied’ that the party was given reasonable opportunity to appear but failed to do so’. No such determination was made in this instance. As we have said, the decision to conduct the proceedings by telephone connection appears to have been arranged administratively without engaging McK,D in the process. As it presently seems to us, the circumstances do not suggest the Board exhausted the prerequisite requirement to be satisfied McK,D was given a reasonable opportunity to appear, before which the power to proceed in the absence of a party is engaged under s 14 Guardianship and Administration Act.
Nor can we be satisfied the result would inevitably be the same, given that McK,D was effectively prevented from putting, or agitating his version of the events: SZBYR v Minister for Immigration and Citizenship.[23] The appeal is allowed accordingly on entirely procedural grounds. Fundamental as they may be, they reflect no view one way or the other as to the underlying merits, which are now entirely a matter for the Board to resolve.
[23] (2007) ALJR 1190, [29], [87] and [91-[92].
Conclusion and Orders
In light of the above conclusions, on the basis of an appropriate procedural error, we find cogent reason to depart from the decision of the Board, which is therefore rescinded and the matter remitted to the Guardianship Board for full consideration on the merits pursuant to s 42F of the District Court Act 1991 (SA). The orders of the Board are however to remain intact in the meantime in accordance with these reasons. There will be no order as to costs: s 42G(2) of the District Court Act.
NOTE: This judgment is published with the express authorisation of the appellant given under s 81(2) of the Guardianship and Administration Act. Certain portions have been edited to ensure no information is disclosed ‘that identifies, or could tend to identify, the person to whom the proceedings relate’: s 81(3).
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