Misrachi v Public Guardian

[2019] NSWSC 752

Supreme Court

New South Wales

Medium Neutral Citation:	Misrachi v Public Guardian [2019] NSWSC 752
Hearing dates:	13, 14 May 2019; Submissions 28 May 2019
Date of orders:	24 June 2019
Decision date:	24 June 2019
Jurisdiction:	Equity
Before:	Emmett AJA
Decision:	1. Proceedings dismissed. 2. Plaintiff to pay the costs of the Public Guardian.
Catchwords:	ADMINISTRATIVE LAW – administrative tribunals – Civil and Administrative Tribunal (NSW) - whether the Tribunal erred in failing to afford procedural fairness – whether the Tribunal failed to take into account the general principles in s 4 of the Guardianship Act 1987 (NSW) – whether the Tribunal made a manifestly unreasonable decision – whether the Tribunal placed excessive reliance on matters to the exclusion of all relevant factors – whether the Tribunal ought to have allowed the Daughter to adduce particular medical evidence.
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Guardianship Act 1987 (NSW)
Cases Cited:	Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Attorney-General (NSW) v Quinn (1990) 170 CLR 1 EB v Guardianship Tribunal [2011] NSWSC 767 Hossain v Minister for Immigration and Border Protection [2018] HCA 34 Kioa v West (1985) 159 CLR 550 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 W v G (2003) 59 NSWLR 220
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Joy Misrachi (Plaintiff) Public Guardian (First Defendant) Malca Misrachi (Second Defendant)
Representation:	Counsel: J P Capsanis (Plaintiff) M Higgins (First Defendant)   Solicitors: J P Capsanis & Co, Lawyers (Plaintiff) Crown Solicitor’s Office (First Defendant)
File Number(s):	2016/229457
Publication restriction:	Nil
Decision under appeal	Court or tribunal: NSW Civil & Administrative Tribunal Jurisdiction: Guardianship Division Date of Decision: 31 May 2016 Before: Ms Janice Connelly, Senior Member (Legal)Dr Gail Jamieson, Senior Member (Professional)Ms Jennifer Newman, General Member (Community) File Number(s): 2014/9455; 2015/8202; 2015/10050; 2015/10593

Judgment

Introduction

1. This appeal is concerned with orders (the 2016 Orders) made by the New South Wales Civil and Administrative Tribunal (the Tribunal) in relation to Mrs Malca Misrachi (the Mother) on 14 April 2016 for reasons published on 31 May 2016. The 2016 Orders consisted of a guardianship order under the Guardianship Act 1987 (NSW) (the Guardianship Act) appointing the first defendant, NSW Trustee & Guardian (the Public Guardian), as the Mother’s guardian for a period of three years, and the revocation of the appointment of the plaintiff, Ms Joy Misrachi (the Daughter), as the Mother’s enduring guardian. The Mother has a number of medical conditions, including dementia. It is common ground that the Mother’s cognitive impairment most likely stems from dementia. At the time of the 2016 Orders, the Mother was 86 years old and was resident in an aged care facility at Vaucluse.

2. The Daughter has appealed from the 2016 Orders. Before dealing with the grounds of appeal and the Daughter’s submissions, it is desirable to say something about the statutory framework of the appeal. I shall then say something about the background to the proceedings. That will entail reference to several proceedings concerning the Mother in the Tribunal.

Statutory Framework

3. Section 4 of the Guardianship Act provides that it is the duty of everyone exercising functions under that Act, with respect to persons who have disabilities, to observe the following principles:

• The welfare and interests of such persons should be given paramount consideration;

• The freedom of decision and freedom of action of such persons should be restricted as little as possible;

• Such persons should be encouraged, as far as possible, to live a normal life in the community;

• The views of such persons in relation to the exercise of those functions should be taken into consideration;

• The importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised;

• Such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs;

• Such persons should be protected from neglect, abuse and exploitation and

• The community should be encouraged to apply and promote those principles.

4. Section 6 of the Guardianship Act, which is in Pt 2, relevantly provides that a person of or above the age of 18 years may appoint a person as his or her guardian. Under s 6A, an appointment under Pt 2 has effect only during such period of time as the appointor is a person in need of a guardian. A person in need of a guardian is a person who, because of a disability, is totally or partially incapable of managing his or her person. [1] A reference to a person who has a disability is a reference to a person who is intellectually, physically, psychologically or sensorily disabled, who is of advanced age and who, by virtue of that fact, is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation. [2]

   1. Guardianship Act 1987 (NSW) (Guardianship Act) s 3.

   2. Guardianship Act s 3(2).

5. A person appointed under Pt 2 is appointed as an enduring guardian. Section 6E and s 6F of the Guardianship Act deal with the functions and ancillary powers of an enduring guardian. Under s 6G, acts of an enduring guardian take effect as acts of the appointor. Under s 6K, the Tribunal may revoke the appointment of an enduring guardian if it is satisfied that it is in the best interests of the appointor that the appointment be revoked. [3]

   3. Guardianship Act s 6K(1)(a) and s 6K(2)(b).

6. Section 14 of the Guardianship Act relevantly provides that if, after conducting a hearing into any application made to it for a guardianship order in respect of a person, the Tribunal is satisfied that the person is a person in need of a guardian, the Tribunal may make a guardianship order in respect of that person. In considering whether or not to make a guardianship order in respect of the person, the Tribunal is required to have regard to:

• the views of that person and the person, if any, who has care of that person;

• the importance of preserving that person’s existing family relationships;

• the importance of preserving that person’s particular cultural and linguistic environments; and

• the practicability of services being provided to that person without the need for the making of such an order.

7. Under s 15(3) of the Guardianship Act, a continuing guardianship order appointing the Public Guardian as the guardian of a person under guardianship is not to be made in circumstances in which such an order can be made appointing some other person as the guardian of the person. However, it is not sufficient simply that the person be willing, reliable and responsible. It is necessary that the appointment will result in the policy considerations and principles set forth in the Guardianship Act being given effect[4] .

   4. See W v G (2003) 59 NSWLR 220 at [25].

8. Section 17 of the Guardianship Act relevantly provides that a person shall not be appointed as the guardian of a person under guardianship unless the Tribunal is satisfied as to certain matters in relation to the proposed guardian. However, that proscription does not apply to the appointment of the Public Guardian as the guardian of a person under guardianship. [5]

   5. Guardianship Act s 17(2).

9. Section 18(1)(a) of the Guardianship Act relevantly provides that an initial guardianship order is not to exceed one year. Section 18(1)(b) provides that a continuing guardianship order shall not exceed three years from the date on which it is renewed.

10. The appeal of these proceedings is brought pursuant to cl 14 of sch 6 to the Civil and Administrative Tribunal Act 2013 (NSW) (the Tribunal Act). Schedule 6 of the Tribunal Act deals with the Guardianship Division of the Tribunal. Clause 12(1) of Schedule 6 relevantly provides that a party to proceedings in which a Division decision [6] that is an internally appealable decision is made may appeal against the decision to the Supreme Court. Under cl 14, a party to such proceedings may appeal as of right on any question of law or, with the leave of the Supreme Court, on any other grounds. [7] No leave has been sought by the Daughter to appeal on any other grounds.

    6. “Division decision” is defined in the Civil and Administrative Tribunal Act 2013 (NSW) (Tribunal Act) Schedule 6 s 1 as “a decision of the Tribunal in exercise of a Division function”. “Division function” is defined in the same section as “a function of the Tribunal allocated to the Division by [Schedule 6]”.

    7. Tribunal Act s 14(1)(b).

11. Under cl 14(3) of Schedule 6, the Court may, in an appeal, decide to deal with the appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing. The Court in that event may permit such fresh evidence, or evidence in addition to or in substitution of the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances. The Daughter has not asked the Court to deal with the appeal by way of a new hearing. It follows that the only material that should be before this Court is the material that was before the Tribunal.

12. Under cl 14(4) of Schedule 6, the Supreme Court, in determining an appeal, may make such orders as it considers appropriate in light of its decision on the appeal. In particular, but without limiting the width of that power, the Court may make orders that provide for the decision under appeal to be:

• confirmed, affirmed or varied;

• quashed or set aside, or

• quashed or set aside and for another decision to be substituted for it.

Alternatively, the Court may order the whole or any part of the case to be reconsidered by the Tribunal at first instance.

13. Under cl 14(5), subject to any interlocutory order made by the Supreme Court, an appeal to the Supreme Court operates to stay the decision under appeal. By order made by Lindsay J on 29 August 2016, the decision under appeal is not stayed.

Factual Background

14. The Mother has four children, being the Daughter, Dr Avner Misrachi, Dr Shavtay Misrachi and Ms Suzette Misrachi. Ms Suzette Misrachi is apparently estranged from the family. The Tribunal found that there is a level of conflict as between the Daughter, on the one hand, and Dr Avner Misrachi and Dr Shavtay Misrachi, on the other.

15. In 2004, the Daughter assumed a caregiving role for the Mother and helped her with various domestic tasks from that time. Between 2004 and 2014, the Mother sometimes occupied her unit in Maroubra and at other times stayed with the Daughter at the Daughter’s residence in Maroubra. During that period, the Mother had periods of respite accommodation in residential aged care facilities.

16. In 2009, the Mother experienced a fall while travelling on a bus. She was taken by the Daughter to the Prince of Wales Hospital Memory Disorders Clinic (Memory Clinic) where she was assessed by a psychogeriatric registrar as suffering from mild to moderate impairment of cognitive function. On discharge form the Memory Clinic, it was stressed that the Mother should return for a review in one year’s time. There is no evidence that such a review occurred. In 2012, the Mother was assessed by medical staff at the Prince of Wales Hospital following an admission for a hip injury. She received a brief mental assessment during that admission.

17. On 19 June 2013 the Mother executed an enduring power of attorney appointing the Daughter and Rabbi Moshe Gutnick as her attorneys. On the same day, the Mother granted enduring guardianship to the Daughter. The Mother also executed an enduring guardianship instrument to appoint Rabbi Gutnick as an enduring guardian on 19 June 2013. However the Tribunal subsequently found that Rabbi Gutnick was not properly appointed, as his signature was not witnessed and his name was crossed out.

18. On 24 October 2014 the Mother attended before the Tribunal and was interviewed by the Tribunal. The Tribunal considered that the Mother’s comments on that occasion indicated a degree of confusion or paranoia on her part. The Tribunal appointed the Public Guardian as the Mother’s guardian for 12 months, with authority to make decisions for her about her accommodation, services and healthcare and to provide consent to medical and dental treatment. The Public Guardian was also given the function of access, which enabled of the Public Guardian to make decisions about the people to whom the Mother has access and the terms of that access.

19. On 24 October 2014, the Tribunal also considered an application by Dr Avner Misrachi for a financial management order under the Guardianship Act in respect of the Mother. The Tribunal adjourned the hearing of that application and subsequently dismissed the application in February 2015 on the basis that there was no need for such an order at that time. In making that decision, the Tribunal took into account the appointment by the Mother of the Daughter and Rabbi Moshe Gutnick as her enduring attorneys and the enduring guardianship of the Daughter.

20. On 2 September 2015, the Tribunal heard an urgent application by the Public Guardian and varied the order made on 24 October 2014 to include a coercive accommodation function. That gave the Public Guardian the power to authorise others to give effect to its accommodation decision, by taking the Mother to a place, keeping her there and returning her if she were to leave. That application was made urgently because the Mother had left the aged care facility at Vaucluse where she was living at that time and her whereabouts were not known to the Public Guardian or to the staff of the nursing home.

21. On 3 September 2015, the Tribunal received an application from Dr Avner Misrachi seeking review of the enduring powers of attorney executed by the Mother. On 15 October 2015, Dr Avner Misrachi applied for a financial management order in respect of the Mother. On that day, a separate representative was appointed for the Mother.

22. At a hearing on 23 October 2015, the Tribunal joined Dr Shavtay Misrachi as a party to all proceedings and granted leave for the Daughter to be legally represented in all matters before the Tribunal concerning the Mother. At the hearing on 23 October 2015, the Tribunal made a financial management order appointing the Public Guardian as the Mother’s financial manager. That order was to be reviewed in 12 months.

23. The Tribunal adjourned the hearing of the review of the guardianship order that had been made on 24 October 2014, the review of the financial management order and the application to review the enduring power of attorney, to 10 December 2015. The Tribunal gave directions in relation to the filing and serving of further evidence to the Daughter and Rabbi Moshe Gutnick. The Tribunal directed that the Mother attend the hearing on 10 December 2015 in person.

24. On 13 November 2015, Dr Avner Misrachi filed an application to the Tribunal seeking review of the enduring guardian appointment of the Daughter.

25. On 10 December 2015, the Tribunal convened to consider the various applications that have been adjourned to that day. The Mother, the Daughter, Dr Shavtay Misrachi and Dr Avner Misrachi each attended the hearing and gave evidence before the Tribunal. At that time, the Mother had been living in a nursing home for a significant period of time. However, on that occasion, she told the Tribunal that she was living in a three bedroom apartment, that she did not live in a nursing home and that she had never lived in a nursing home. At that time, all of her children were adults who had lived independently from her for many years. Nevertheless, she told the Tribunal that her focus every day was to make sure that all her children had enough to eat. In those circumstances, the Tribunal concluded that the Mother’s cognitive impairment prevented her from making important life decisions. The proceedings were adjourned part heard.

26. On 14 April 2016, the Tribunal reconvened to continue its hearing of the various applications that had been adjourned from 10 December 2015. The Daughter, Dr Shavtay Misrachi and Dr Avner Misrachi attended the hearing on 14 April 2016 in person. Also present at the hearing were two officers of the Public Guardian and the wives of Dr Shavtay Misrachi and Dr Avner Misrachi. In addition, Ms Jill Hill attended the hearing as a separate representative for the Mother. The Mother participated in the hearing by telephone from the aged care facility in Vaucluse where she was living. Present with her at that facility was a Hebrew interpreter and the Deputy Director of Nursing at the facility.

27. During the course of the hearing on 14 April 2016, the Daughter requested that the members of the Tribunal disqualify themselves. That application had been foreshadowed on 11 April 2016. The basis of the application was that one of the Tribunal members, a geriatrician, had a conflict because the Daughter had telephoned that member and left a message asking the member to call her back, as she was seeking an assessment of the Mother. The member spoke to the Daughter on 4 August 2015. The Daughter says she advised the member that she wanted a report for Supreme Court proceedings and that in doing so the Daughter explained to the member the Mother’s medical history and a number of issues she was experiencing with the Public Guardian. The member then disclosed to the Daughter that she was a member of the Tribunal, and gave her the names of two other geriatricians. The Tribunal was not satisfied that a fair minded observable would consider that it was biased or that it had a conflict by reason of the communications between that member and the Daughter. The Tribunal members therefore declined to recuse themselves.

28. During the course of the argument for recusal, the Daughter raised concerns about the fact that the Mother was not physically present at the hearing. The Tribunal noted that the Mother was at the aged care facility with a Hebrew interpreter and the Deputy Director of Nursing. Representatives of the Public Guardian informed the Tribunal that the previous hearings had been very stressful for the Mother, that she had been exhausted at the conclusion of the hearings, that the Mother had been very unwell and that it would have been very difficult and stressful for her to be brought to the hearing room in person. The Tribunal was informed that the Mother was physically in pain and that a decision had been made that it would be better for her to be in a more comfortable physical environment.

29. Ms Hill, the Mother’s separate representative, informed the Tribunal that she was not concerned that the Mother was not in the hearing room. Ms Hill said that she had spent at least two hours in the Mother’s company about one month previously and had an opportunity to discuss matters with her. She said that she supported the Public Guardian’s decision. Ms Hill said that the Tribunal had had a good opportunity to assess the Mother on the last occasion and that she was currently chairbound, tired easily and lost concentration easily. Neither Dr Shavtay Misrachi nor Dr Avner Misrachi raised any concerns about the Mother’s participation in the hearing by telephone.

30. The Tribunal explained to the parties that, although the Mother was a party to the proceedings, it was not essential that she be physically present and that she was present by telephone link with a Hebrew interpreter. The Tribunal also informed the parties that it had had an opportunity to speak to the Mother and observe her on the previous occasions and did not consider that there were any issues in relation to her lack of physical attendance at the hearing. The Tribunal expressed the preference that the Mother be as comfortable as possible for the duration of the hearing.

The Appeal

31. The grounds of appeal relied upon by the Daughter are that, in making the 2016 Orders, the Tribunal erred in law in the following respects:

1. The Tribunal failed to observe procedural fairness in that:

1. the Mother, being a party to the proceedings before the Tribunal, was not physically present in the hearing room on 14 April 2016;

2. contrary to s 14(2)(a)(i) of the Guardianship Act, the Tribunal failed to give any or sufficient regard to the views of the Mother; and

3. the incompetence of the interpreter in the Hebrew language during the hearing prejudiced the evidence heard, received and given by the Mother.

2. The Tribunal failed to observe or failed in its discretion to take into account all the relevant factors to enable it to observe the following general principles prescribed in s 4 of the Guardianship Act:

1. the paramount consideration of the welfare and interests of the Mother in circumstances where:

• the Daughter had been the Mother’s primary carer since the death of the Mother’s husband in 2004 and had taken good care of the Mother,

• the Mother wanted to go to her home with the Daughter, and

• there was no evidence that the Mother supported the application to revoke the appointment of the Daughter as enduring guardian and enduring attorney;

2. the freedom of decision and the freedom of action of the Mother be restricted as little as possible;

3. the implementation of the Mother’s own choices regarding access to family members;

4. encouraging the Mother as far as possible to live a normal life in the community by living with the Daughter and living in her own unit with the care of the Daughter; and

5. encouraging the Mother as far as possible to be self-reliant in matters relating to her personal, domestic and financial affairs.

3. The decision of the Tribunal was manifestly unreasonable and wrong in holding that the Mother’s relationship with the Daughter was oppressive and that there was overwhelming evidence that the Daughter was not making decisions in the Mother’s best interests and that the Mother was vulnerable to undue influence and pressure and to emotional and physical abuse by the Daughter.

4. The Tribunal placed excessive reliance on matters to the exclusion of all relevant factors such as the close and loving relationship between the Daughter and the Mother, the Daughter having been the Mother’s primary carer; and

5. The Tribunal failed to allow the Daughter to adduce the evidence of a specialist geriatrician, Dr Ernest Tam, and failed to take into account appropriately the evidence of Dr Litsa Zavras, the Mother’s general practitioner, and other evidence in support of the Mother’s capacity.

Significantly, those grounds do not formulate any question of law in respect of which the Tribunal was said to have erred.

32. The Daughter was represented by her solicitor during the hearing in this Court, although she regularly interrupted him in the course of the oral argument and regularly purported to address the Court herself, despite being told on many occasions to be quiet and to cease interfering.

33. The Daughter relied on written submissions dated 13 May 2019, which were prepared by her solicitor. They were supplemented by oral argument. Neither the written submissions nor oral argument addressed the grounds of appeal in terms or formulated any question of law.

34. The Public Guardian was joined as a party to this appeal and the Court had the benefit of detailed written submissions dated 12 October 2018 on behalf of the Public Guardian and oral argument from counsel for the Public Guardian. The Mother was also joined as a party to the appeal but did not participate in the hearing of the appeal.

Ground 1: Procedural Fairness

35. The Daughter’s submissions addressed the absence of personal attendance on the part of the Mother in the hearing room on 14 April 2016. She pointed to the fact that the Tribunal had directed that the Mother attend in person and complained that the Tribunal did not explain why it did not follow up that direction to ensure that the Mother was in personal attendance in the hearing room. The Daughter asserted that her personal attendance could have been facilitated by an adjournment until the Mother was well enough to attend in person. The Daughter also complained that, since the Mother was unwell on the day, she was unable to participate or function efficiently by telephone. Because of her impairment, she said, the process was an unsatisfactory means of ascertaining the Mother’s views.

36. The Daughter asserted the Tribunal asked the Mother who she wanted to be her guardian and complained that the Tribunal did not obtain a reply. The Daughter asserted that the Mother wanted her to be her enduring guardian, as evidenced by the documents executed some years before. She referred to her own evidence given to the Tribunal that the Mother wanted to go home with her.

37. It is not in dispute that the Tribunal is required to afford procedural fairness to any person whose interests, rights or legitimate expectations are affected by its decisions. The content of that requirement must be appropriate and adapted to the circumstances of the particular case[8] . The concern of procedural fairness is to avoid practical injustice, and there will be practical injustice where the aggrieved party has been deprived of the opportunity to advance his or her case[9] . However, there will be no denial of procedural fairness where no practical injustice is shown. Even if a want of procedural fairness is identified, it will not affect the validity of the decision unless it is material, in the sense that it did not deprive the person who was denied an opportunity to be heard of the possibility of a successful outcome[10] .

    8. See EB v Guardianship Tribunal [2011] NSWSC 767 at [158] quoting Kioa v West (1985) 159 CLR 550 at 585.

    9. See Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at [57] quoting Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1.

    10. See Hossain v Minister for Immigration and Border Protection [2018] HCA 34 quoting Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at [56].

38. The obligation to afford procedural fairness is owed to parties whose individual interests may be particularly affected by the exercise of a statutory power. Where an individual has standing to complain of the exercise of the power, the power would be such that its exercise is apt to impact differentially on individual interests. On that account, the power would be validly exercised only by according natural justice to those whose interest will be especially affected[11] .

    11. See Attorney-General (NSW) v Quinn (1990) 170 CLR 1 at 40.

39. The Daughter was given every opportunity to make such submissions and adduce such evidence as she wished in support of her case before the Tribunal, and it is by no means apparent how the conduct on the part of the Tribunal that is said to give rise to procedural unfairness affected the Daughter in any way. Indeed, it is by no means clear that the Daughter’s desire to be appointed the Mother’s guardian aligns with the Mother’s interest or that the Daughter had an interest that coincided with the interest of the Mother at all. It is difficult to see what interest the Daughter had in requiring the Mother’s physical presence at the hearing room, or an adjournment to permit that presence.

40. Further, it is quite apparent that there was no denial of procedural fairness in relation to the interests of the Mother. There was no practical injustice for the Mother in not being physically present at the hearing room on 14 April 2016. She had been physically present at the hearing on 24 October 2014, when the Tribunal determined that a guardianship order should be made to ensure that she received appropriate medical care and to resolve the contested issues of access and accommodation between the various members of the family. The Mother was also present at the hearing on 10 December 2015 and gave evidence to the Tribunal directly.

41. There was no evidence before the Tribunal on 14 April 2016 that the Mother’s degree of cognitive impairment had altered, by way of improvement, in the months that had passed between 10 December 2015 and 15 April 2016. In those circumstances, there was no evidence before the Tribunal, and, a fortiori before this Court, that suggested a different result could have been reached on the question of whether the Mother was a person in need of a guardian if she had physically attended the hearing room on 14 April 2016. The Mother’s physical attendance on 14 April 2016 could not have made a difference to the outcome on the question of whether she was a person in need of a guardian. Neither the Daughter nor the Mother lost any opportunity to advance their respective interests.

42. The Tribunal’s decision to appoint a guardian, the identity of the guardian and the time of the guardianship order were matters to be addressed on the assumption that the Mother was, by reason of her cognitive decline, incapable of attending to her own care and determining her own accommodation and access to family members. Her physical attendance at the hearing on 14 April 2016 could not have led to a different result on any of those questions or on the adequacy of the Daughter to attend to the Mother’s care and interests. Each of those questions turned on the Tribunal’s appraisal of the independent evidence of the Daughter, the Public Guardian, the Mother’s separate representative and the Mother’s two sons.

43. The Tribunal asked the Mother if she wished to express a view on the identity of her guardian. She did not verbally reply but the nurse sitting with her advised that the Mother had raised her shoulders. When the Tribunal asked whether she had any comments or questions in relation to the review of the guardianship order, the Mother said “no”. None of the evidence suggests that a different answer would have been elicited from the Mother had she been physically present in the hearing room on 14 April 2016. There is no basis for concluding that the Daughter was not accorded procedural fairness or that the Mother was not accorded procedural fairness by reason of the physical absence of the Mother from the hearing room on 14 April 2016.

44. To the extent that it is relevant, there is no compelling evidence before the Court that the interpreter present with the Mother was incompetent. Even if there were evidence of incompetence, there is no evidence that the faulty interpretation caused prejudice either to the Daughter or to the Mother. There was no challenge to the particular answers given by the Mother to questions on 24 October 2014 and 10 December 2015, which underlay the Tribunal’s reasoning of cognitive impairment as a result of wrong interpretation.

45. It is a necessary part of the protective jurisdiction conferred by the Guardianship Act that the Tribunal will be required to make decisions regarding guardianship orders for people who have cognitive impairments or poor physical health. To require that such people physically attend every Tribunal hearing would be contrary to the duty imposed on the Tribunal that persons with disabilities be given paramount consideration. The procedures adopted by the Tribunal gave the Daughter every opportunity to respond to the application for guardianship in the light of the constraints imposed by the Mother’s cognitive impairment and physical decline. Participation by telephone rendered the most minimal impact on the Mother’s welfare permitting her to participate in the hearing.

46. No practical injustice was suffered by the Mother or by the Daughter by reason of the Tribunal’s decision to conduct a hearing on 14 April 2016 in the absence of the physical presence of the Mother. It follows that none of the particulars said to constitute procedural fairness are made out. The first ground of appeal should be rejected.

Ground 2: Section 4 of the Guardianship Act

47. The Daughter asserted that, in its reasons of 31 May 2016, the Tribunal failed to have proper regard for the principles set out in s 4 of the Guardianship Act. The Daughter asserted that she wishes the Mother to live with her and that there are no other family members interested in having the Mother living with them. She asserted that she is willing, reliable and responsible “albeit expressive and assertive”. She complained that much of the evidence and reasoning of the Tribunal were directed to the tension between the Daughter, on the one hand, and the rest of her family, on the other. She asserted that the Tribunal should have found that the Mother did not have a good relationship with her two sons but did have a good relationship with the Daughter.

48. The Daughter asserted that the Public Guardian should not be appointed guardian in circumstances where she herself was available and complained that there was insufficient recognition of that fact in the Tribunal’s reasons. She also asserted that she had had considerable experience in looking after the Mother and complained that the Tribunal should not have had regard to tension between her and her brothers.

49. Those contentions do not address the grounds of appeal. Rather, they address the merits of the Tribunal’s decision. The second ground of appeal simply alleges that the Tribunal failed to abide by the general principles contained in s 4 of the Guardianship Act. There is no properly framed question of law but simply a generalised claim that the Tribunal failed to reach the result desired by the Daughter. The substance of the claim challenged the merits of the Tribunal’s decision in dealing with the statutory requirements of whether a guardianship order was necessary and who the guardian should be. While the general principles of s 4 must be observed by the Tribunal in the exercise of its functions, those principles do not compel the Tribunal to arrive at a particular outcome[12] .

    12. See EB v Guardianship Tribunal [2011] NSWSC 767 at [102].

50. In any event, the Daughter has not established that the Tribunal failed to observe any of the principles in s 4. Thus, there is no evidence that the Tribunal failed to take account of the Mother’s welfare and interests, in so far as they concern her relationship with the Daughter. The Tribunal expressly averted to those matters and the Tribunal’s decision does not prevent the Daughter from continuing her relationship with the Mother. Further, the Tribunal gave careful consideration to the question of whether the Daughter’s appointment as the Mother’s enduring guardian was in her best interests and concluded that it was not. Setting aside the enduring guardianship does not impinge upon the Mother’s freedom of decision or action.

51. The Tribunal carefully weighed the evidence regarding the Mother’s needs in relation to care and support. There was no evidence that the Tribunal failed to consider the need to encourage the Mother to be self-reliant as far as possible in matters relating to her personal, domestic and financial affairs. The Tribunal’s treatment of the matters complained of by the Daughter were well within its jurisdiction and the exercise of discretion conferred upon it by the Guardianship Act and were in accordance with the general principles expressed in s 4. In the circumstances, the contention that the Tribunal failed to observe the principles in s 4 of the Guardianship Act must be rejected.

Ground 3: Unreasonable Decision

52. The Daughter’s contention that the Tribunal’s decision was manifestly unreasonable must also be rejected. The standard of reasonableness must be determined by a consideration of the terms of the Guardianship Act and of the common law requirement that, when something is to be done within the discretion of a decision-maker, it is to be done according to the rule of reason and justice and according to law[13] . The question is whether the decision reached by the Tribunal is so unreasonable that no reasonable Tribunal could properly have arrived at it[14] .

    13. See Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [89].

    14. See Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

53. The Tribunal’s decision was based on a careful and reasoned engagement with the evidence before it. The conclusion that an 86 year old woman with a cognitive impairment and many health issues should be the subject of a guardianship order, in circumstances where there was a persistent family dispute and the inability of the Mother to attend to her care needs and make decisions in her best interests, could not be characterised as unreasonable in the relevant sense. The conclusion is not one that no reasonable Tribunal could have arrived at. To the extent that the Daughter complained about the weight given by the Tribunal to various facts concerning the relationship between the Daughter and the plaintiff, no question of law is raised. The third ground must be rejected.

Ground 4: Relevant Considerations

54. The fourth ground of appeal fails to disclose any error of law in relation to the Tribunal’s decision. No question of law is raised by it. Rather, the Daughter seeks to impeach the merits of the Tribunal’s decision in considering the question of the identity of the appropriate guardian.

55. The Daughter’s contention that the Tribunal failed to have regard to the Mother’s views cannot be accepted. The Tribunal sought the Mother’s views at the hearings on 24 October 2014, 10 December 2015 and 14 April 2016. The Tribunal gave clear and cogent consideration to the Mother’s wishes regarding access to her family members. The Mother informed the Tribunal herself that she loved all her children.

56. The contention that the Tribunal should have taken greater account of the asserted close and loving relationship between the Daughter and the Mother and the fact that the Daughter had been the Mother’s primary carer must be rejected. It was a matter for the Tribunal to make a judgment as to the weight that it would place on the deterioration in the relationship between the Daughter and the Mother’s other family members, as well as the Daughter’s inability to engage professionally with medical and support staff. The weight to be given to such matters in deciding not to appoint the Daughter as the Mother’s Guardian was entirely a matter for the Tribunal.

57. Further, the antagonism between the Daughter and the other members of her family was contrary to the Mother’s expressed interest in maintaining relationships with the whole of her family. The Daughter, however, gave evidence that she would only give access to the Mother’s grandchildren and not to the Mother’s own children.

58. The Tribunal was entitled to give such weight as it considered appropriate to the Daughter’s difficulties in communicating with medical and support staff. These difficulties were a clear threat to the Mother’s welfare, particularly her medical care, and were therefore matters to which the Tribunal was required to give paramount consideration by s 4(a) of the Guardianship Act. The Tribunal placed heavy weight on that matter as demonstrative of the Daughter’s continued lack of insight into the extent of the Mother’s cognitive incapacity and support needs. That weight was entirely a matter for the Tribunal. The Tribunal also placed weight on the Daughter’s lack of insight into the type of care required by the Mother. For example, the Daughter made no mention of the engagement of expert medical care to respond to the Mother’s cognitive decline. The fourth ground must be rejected.

Ground 5: Rejection of Evidence

59. In relation to Ground 5, the Daughter asserted that Dr Tam is a highly qualified geriatrician who may reasonably be expected to adhere to a medical code of ethics. She characterised Dr Tam’s report as being that of an independent witness, who was available for cross-examination. Accordingly, the Daughter asserted, the rejection of Dr Tam’s evidence was manifestly wrong.

59. The Daughter’s complaints suggest a misapprehension of the procedures adopted by the Tribunal. The Tribunal did not refuse to allow the Daughter to adduce Dr Tam’s report. The Tribunal allowed her to tender the report, gave consideration to its value and concluded that the report and opinion could not be relied upon, for reasons that were expressed by the Tribunal. The weight to be given to such evidence by the Tribunal was a matter entirely for the Tribunal.

60. Similarly, the Tribunal did not fail to consider the report by Dr Zavras. The report was considered at the hearing on 24 October 2014 and at the hearing on 14 April 2016. Parts of the report were accepted, including the cognitive impairment score and the opinion of Dr Zavras that the Mother was suffering from mild to moderate dementia. The Tribunal rejected other parts of the report of Dr Zavras where they conflicted with the opinion of other experts and the Tribunal’s own assessment of the Mother during her attendance at the Tribunal on 24 October 2014 and 10 December 2015. The Tribunal gave clearly express reasons for preferring not to adopt the opinions of Dr Tam and parts of the opinions of Dr Zavras. No error of law is demonstrated in doing so. Ground 5 must be rejected.

Recusal

62. The Daughter’s written submissions complained about the failure by the members of the Tribunal to recuse themselves. That is not a ground of appeal. It is not necessary to address the question further.

Conclusion

63. It follows from the above that the Daughter has failed to establish any ground upon which the Court should interfere with the decision of the Tribunal in making the 2016 Orders. It follows that the proceedings should be dismissed.

64. The Daughter opposes any order for costs against her in the event that the amended summons is dismissed. She asserts that, not uncommonly, no order for costs is made in proceedings in the protective jurisdiction of the Court and that such proceedings constitute an exception to the general principle that costs follow the event.

65. The Daughter claims that she commenced these proceedings on the basis that it was in the interests of the Mother that she remain as the Mother’s guardian, rather than a stranger represented by the Public Guardian. The Daughter asserts that she was available and willing to carry out the functions of enduring guardian in accordance with her appointment by the Mother, and that she was the most suitable person having regard to the family dynamics as they existed.

66. It was open to the Daughter to appeal to the Appeal Panel of the Tribunal, which is a limited costs jurisdiction. In electing to commence proceedings in the Supreme Court, the Daughter exposed herself to the risk of an adverse costs order. Whether or not the Daughter believed that she was acting in the interests of the Mother, she was unsuccessful in the contentions advanced in support of the relief that she claimed. It is significant that there were cumulative ongoing failures on the part of the Daughter in complying with directions given by the Court. The Public Guardian’s legal representatives were required to engage in correspondence with the Daughter's solicitor as to matters arising from the delays and preparation for and attendance at multiple directions hearings. The Public Guardian gave consent on several occasions for extensions of time for the Daughter to file and serve documents.

67. It is clear that the proceedings were conducted in an adversarial manner. The Daughter advanced submissions without regard to the limited jurisdiction of the Court to entertain an appeal on a question of law. I do not consider that any basis has been made out for a departure from the usual rules as to costs. The Daughter should pay the costs of the Public Guardian. The Mother did not participate in the appeal and there should be no order as to her costs.

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Endnotes

Decision last updated: 24 June 2019