Ms A v Public Guardian & Ors

[2006] NSWADTAP 55

Appeal Panel - External

CITATION:	Ms A v Public Guardian & Ors [2006] NSWADTAP 55
PARTIES:	APPLICANT Ms A FIRST RESPONDENT Public Guardian SECOND RESPONDENT Protective Commissioner THIRD RESPONDENT XS FOURTH RESPONDENT Ms B FIFTH RESPONDENT Mr D SIXTH RESPONDENT & DECISION MAKER Guardianship Tribunal
FILE NUMBER:	068011
HEARING DATES:	20/10/06
SUBMISSIONS CLOSED:	10/23/2006
DATE OF DECISION:	10/27/2006
BEFORE:	Hennessy N - Magistrate (Deputy President); Wilson R - Judicial Member; Wunsch A - Non Judical Member
CATCHWORDS:	Financial management order - making - Guardianship order - making - Procedural fairness - Relevant/irrelevant considerations
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	Guardianship Tribunal C/31709
DATE OF DECISION UNDER APPEAL:	05/26/2006
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Guardianship Act 1987 Guardianship and Administration Act1993 (S.A.) Interpretation Act 1987 Protected Estates Act 1983
CASES CITED:	Collector of Customs v Pozzolanic (1993) 43 FCR 280 EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501 IF v IG & Ors [2004] NSWADTAP 3 Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309 Khan v Minister for Immigration, Local Government and Ethnic Affairs 14 ALD 291 Kumagai Gumi Co Ltd v FCT 1999) 161 ALR 699 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 Weal v Bathurst City Council (2000) 111 LGERA 181
REPRESENTATION:	APPLICANT N Perram, SC FIRST RESPONDENT No appearance SECOND RESPONDENT No appearance THIRD RESPONDENT No appearance FOURTH RESPONDENT D Khoury, solicitor FIFTH RESPONDENT A Bartlett, barrister SIXTH RESPONDENT & DECISION MAKER E Cho, solicitor
ORDERS:	1. The Financial Management Order made by the Guardianship Tribunal on 26 May 2006 in relation to XS is affirmed; 2. The Guardianship Order made by the Guardianship Tribunal on 26 May 2006 in relation to XS is set aside. This order takes effect on 3 November 2006; 3. Leave to extend the appeal to other grounds is refused; 4. The Guardianship application is remitted to the Guardianship Tribunal to be heard and decided again, with the hearing of further evidence, in accordance with this decision. This order takes effect on 3 November 2006.

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.

Section 126 provides

(1A) This section applies only to the following:


(a) proceedings in the Community Services Division of the Tribunal,

(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,

(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,

(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983

(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.


(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:

(a) who appears as a witness before the Tribunal in any proceedings, or

(b) to whom any proceedings before the Tribunal relate, or

(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,


whether before or after the proceedings are disposed of.

Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.

(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.

(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Introduction

1 XS is a man in his late 60s who has multiple sclerosis and Alzheimer’s disease. Prior to his admission to a nursing home in 2000, he was living with his long-term de facto partner and her daughter, Ms A. In 1996, XS appointed Ms A as his attorney. That general Power of Attorney was given with the intention that it would continue even if XS lost capacity. When his partner died in 1997, XS continued to live at home with Ms A. In 2000, when XS’s physical and mental condition deteriorated, XS found nursing home accommodation for him, close to where she lived.

2 Ms A has three siblings. She and two of her siblings are in conflict with the fourth sibling, who will be referred to in these reasons as Ms B. Although it is not relevant to any issue in these proceedings, there is a great deal of animosity between the two camps. In July 2005, concerned about the standard of XS’s accommodation in the nursing home and the way Ms A was managing his financial affairs, Ms B made three applications to the Guardianship Tribunal in relation to XS. Those applications were for a guardianship order, a financial management order and a review of the Power of Attorney. Ms B said that her sister, Ms A, was exploiting XS and that he did not have the required mental capacity when he appointed her as his attorney.

3 The Guardianship Tribunal made a guardianship order for 12 months appointing XS’s sister (Ms C) and nephew (Mr D) as joint guardians. The guardians were given the function of determining where XS should live. Shortly after making that order, Ms C and Mr D arranged for XS to move to South Australia where he is currently residing in a nursing home. The Guardianship Tribunal also made a financial management order and appointed XS’s nephew, Mr D, as the financial manager. The making of the financial management order suspended the Power of Attorney: Protected Estates Act 1983, s 76(5). Because the Power of Attorney was no longer operational, the Guardianship Tribunal dismissed the application for a review of that power. Ms A has appealed to the Appeal Panel against the making of the guardianship order and the financial management order, but not against the Guardianship Tribunal's dismissal of the application to review the Power of Attorney.

Jurisdiction

4 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: ADT Act, s 118B(1). Ms A appealed on questions of law and sought leave to appeal against the merits of the Guardianship Tribunal’s decisions. The Guardianship Tribunal provided a copy of the documents that were before it, but the transcript was not available because the proceedings had not been recorded in a manner which allowed the tape to be transcribed.

Parties and representation

5 The parties to the appeal were the appellant, Ms A and the respondents, the Public Guardian, the Protective Commissioner, XS, Ms B and Mr D. Ms A was entitled to appeal against the Guardianship Tribunal’s decision, as she was a statutory party to those proceedings, despite not being identified in the decision as a party: Guardianship Act, s 3F(2)(d) and s 3D. Neither the Protective Commissioner nor the Public Guardian wished to present a case or make submissions. Nor did the Protective Commissioner consider that there was any need for XS to be legally represented. Ms B was legally represented. By consent, Mr D, the financial manager, was joined as a party to this appeal pursuant to s 67(4) of the ADT Act and was legally represented.

6 The Guardianship Tribunal said that it wished to have an active role in the appeal, but only to the extent of being available to make submissions in relation to the Guardianship Tribunal’s practices and procedures. That is consistent with the principles outlined by the High Court in R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 at 35. Ms Cho appeared for the Guardianship Tribunal.

Alleged errors in relation to Guardianship Order

7 Parties. The first error that Ms A submitted that the Guardianship Tribunal had made was to fail to identify her as a party to the proceedings. At page 3 of its decision, the Guardianship Tribunal listed XS, Ms B and the Public Guardian as parties to the application for guardianship. Ms A, as the carer of XS immediately before his admission to the nursing home, was a statutory party to that application: Guardianship Act, s 3F(2)(d) and s 3D(2). Consequently, the Guardianship Tribunal made an error of law by not identifying Ms A as a party to the guardianship application. That error was a technical one which, by itself, did not materially affect the Guardianship Tribunal’s decision. Ms A was given notice of the hearing, provided with documents prior to the hearing, participated in the proceedings and was sent a copy of the decision. The Guardianship Tribunal recognised her as a party to both the financial management application and the review of the Power of Attorney and all three applications were heard at the same time. However, Ms A said that the error infected the manner in which the Tribunal adduced evidence from her and subsequently treated that evidence. We deal with those submissions as they arise in relation to other grounds of appeal.

8 Person in need of guardian. When determining an application for a guardianship order, s 14 of the Guardianship Act requires the Guardianship Tribunal to engage in a two-step process. First, the Guardianship Tribunal must be satisfied that the person is “a person in need of a guardian”: s 14(1). That expression 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”. In order to determine whether a person is “a person in need of a guardian" the Guardianship Tribunal must consider two things: (1) whether the person has a disability and (2) whether because of that disability the person is totally or partially incapable of managing his or her person: IF v IG & Ors [2004] NSWADTAP 3 at [24]. The determination of whether a person has a disability is governed by s 3(2) of the Guardianship Act. The Guardianship Tribunal concluded that XS was “a person in need of guardian” in accordance with that definition and there is no dispute about that finding.

9 Exercise of discretion. The second step in the process of determining an application for a guardianship order is for the Guardianship Tribunal to exercise its discretion when deciding whether or not to make such an order. In determining that question, the Guardianship Tribunal must have regard to each of the factors listed in s 14(2). That provision states that:

In considering whether or not to make a guardianship order in respect of a person, the Tribunal shall have regard to:

(a) the views (if any) of:

(i) the person, and

(ii) the person’s spouse, if any, if the relationship between the person and the spouse is close and continuing, and

(iii) the person, if any, who has care of the person,

(b) the importance of preserving the person’s existing family relationships,

(c) the importance of preserving the person’s particular cultural and linguistic environments, and

(d) the practicability of services being provided to the person without the need for the making of such an order.

10 What does s 14(2) require? The Appeal Panel explained the process required by s 14(2) in IF v IG & Ors [2004] NSWADTAP 3 at [26]:
When undertaking the second step in the process required by s 14 of the Guardianship Act 1987 the Guardianship Tribunal is required to exercise a structured discretion. The Guardianship Tribunal must consider all of the matters set out in s 14(2) before exercising its discretion. The use of the words "shall have regard to" in s 14(2) is a clear indication of the legislative intent that the Guardianship Tribunal is obliged to consider all of the matters set out in that sub-section before exercising its discretionary power. Those matters have no hierarchy or weighting. Each is a mandatory consideration. The Guardianship Tribunal must determine in every case whether one or more of those considerations will be given greater weight than others. Whilst each is a mandatory consideration, in some cases there may be no evidence of one or more of them. In such circumstances it may be prudent for the Guardianship Tribunal to record that fact. (Emphasis added.)
11 Summary of submissions . Ms A submitted that the Guardianship Tribunal erred by not taking into account her views, as required by s 14(2)(a)(iii); by not taking into account the importance of preserving XS’s existing family relationships, as required by s 14(2)(b); and by not taking into account the practicability of services being provided to XS without the need for the making of a guardianship order, as required by s 14(2)(d). We are satisfied that the relationship of XS to the daughters of his former de facto partner are “existing family relationships” even though they are not blood relatives. No party disputed that proposition.

12 While the parties agreed that the Guardianship Tribunal is obliged to consider the matters listed in s 14(2), they differed in their understanding of what was required of the Guardianship Tribunal in order to fulfil that obligation. Ms A said that it cannot be inferred from the Guardianship Tribunal’s reasons for decision that it had regard to those matters. According to Ms A, the fact that the Guardianship Tribunal did not identify her as a party to the guardianship application is a further indication that the Guardianship Tribunal did not have take her views or her relationship with XS into account.

13 The other parties who were represented at the hearing, submitted that the references the Guardianship Tribunal made to Ms A’s views and to the existence of a relationship between her and XS when summarising the evidence, is sufficient compliance with s 14(2)(a)(iii) and s 14(b). They said that the Guardianship Tribunal did have regard to the practicability of services being provided to XS if an order was not made. They added that the Tribunal conducts its proceedings informally and that its reasons should not be construed “minutely and finely with an eye keenly attuned to the perception of error”: Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287.

14 What does “shall have regard to” in s 14(2) mean? Some judges have considered it sufficient for a decision maker to do no more than “. . . call his own attention to the matters which he is bound to consider”: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 per Mason J at 39. At the other end of the scale are Gummow J’s remarks in Khan v Minister for Immigration, Local Government and Ethnic Affairs (14 ALD 291 at 292) where His Honour said that the decision maker must give “proper, genuine and realistic consideration to the merits of the case.”

15 The Court of Appeal addressed this issue in Weal v Bathurst City Council (2000) 111 LGERA 181 in the context of an application for judicial review on the ground that the decision maker had not taken into account relevant considerations. Giles JA, with whom Priestley JA agreed, stated the relevant principle at 201:

Taking relevant matters into consideration called for more than simply adverting to them. There had to be an understanding of the matters and the significance of the decision to be made about them, and a process of evaluation, sufficient to warrant the description of the matters being taken into consideration.
16 In our view, this is also the correct approach when considering whether the Guardianship Tribunal has complied with s 14(2). An understanding of the matters in s 14(2) and the significance of the decision to be made about them, together with a process of evaluation, are required before it can be said that the Guardianship Tribunal has fulfilled its statutory obligation. That conclusion is supported by the subject matter, scope and purpose of the Guardianship Act. Section 4 sets out the principles which any person exercising a function under that Act must observe. Two of those principles are that “the welfare and interests of” people with disabilities “should be given paramount consideration” and that “the freedom of decision and freedom of action of such persons should be restricted as little as possible”. Those principles may be defeated if the Guardianship Tribunal does not address and evaluate each of the matters in s 14(2) which is relevant in the particular case. Each of the three matters listed in s 14(2)(a)(iii), s 14(2)(b) and s 14(2)(d) is significant in this case and any failure by the Tribunal to have regard to those matters may have materially affected the decision: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40.

17 Consequently, the questions the Appeal Panel needs to ask itself are firstly whether the Guardianship Tribunal adverted to the matters in s 14(2)(a)(iii), s 14(2)(b) and s 14(2)(d) in a way which demonstrated that it understood those matters and their significance to the decision and secondly whether it engaged in a process of evaluating those matters before exercising its discretion in relation to the making of a guardianship order. We begin our consideration of these questions by summarising the Tribunal’s decision.

Tribunal’s decision re guardianship application

18 After setting out some formal aspects of the decision, the Tribunal recounted the evidence. That evidence was from XS’s general practitioner about his capacity and from XS and staff at the nursing home about his views, the nature and standard of his accommodation and his relationships with Ms A and others. The Tribunal members visited XS in the nursing home and spoke to him and to staff members.

19 The Tribunal then summarised the evidence given by Ms A, Ms B, Ms C and Mr D. In particular, the Tribunal noted that Ms C foreshadowed that she was thinking of relocating her brother to South Australia if she was appointed as his guardian. Ms C mentioned that XS would then be able to interact with relatives that he had not previously met such as nieces and nephews.

20 The Tribunal then made a finding that XS was “a person in need of a guardian” as required by s 14(1). Its consideration of the matters in s 14(2) is to be found in the following paragraphs:

There had been inertia in relation to the current accommodation placement. No decisions had been made about a better level of accommodation in the vain hope that the facility would be rebuilt. This had not transpired in the five years that [XS] has been a resident of the facility and he has continued to reside in sub-optimal facility in which he does not have access to stimulation and regular outdoor activities.

The Tribunal was satisfied of the need to appoint a guardian who can weigh up all accommodation options available to [XS] and make an appropriate decision that is in his best interests.

21 The remainder of the reasoning deals with the question of who should be appointed as XS’s guardian. The Guardianship Tribunal appointed Ms C and Mr D, XS’s sister and nephew respectively, as his joint guardians. No grounds of appeal relate to that appointment.

Views of Ms A

22 As the person who had the care of XS before he moved to the nursing home, the Guardianship Tribunal was obliged to have regard to Ms A’s views before reaching a decision. Ms A submitted that the fact that the Guardianship Tribunal did not identify her as a party meant that it ignored her views. That submission is not supported by the Tribunal’s reasons. The Guardianship Tribunal understood that Ms A was opposing the appointment of a guardian. Ms A told the Guardianship Tribunal that she was happy with the level of care that XS received at the nursing home and that it was her mother’s wish that she take care of XS after she passed away. It was obvious that Ms A’s view was that the Guardianship Tribunal should not appoint a guardian to make decisions about XS’s accommodation because the nursing home was providing him with adequate care. If necessary, Ms A said that she would sell one of XS’s assets to pay the bond for other accommodation.

23 The Tribunal obtained evidence about Ms A’s views and recorded those views. That demonstrates that it understood that Ms A’s views were relevant to the decision it was required to make. But the Guardianship Tribunal did not give any indication that it had turned its mind to the significance of those views when making the decision. The sole reason given for exercising its discretion to make the guardianship order was the fact that XS was in “sub-optimal” accommodation and that Ms A had failed, for the past 5 years, to find XS more appropriate accommodation. It did not evaluate Ms A’s views or weigh them against other relevant matters before making a decision. Its failure to do so cannot be regarded as a mere technicality or formal defect. In our view it constitutes an error of law.

Importance of preserving the person’s existing family relationships

24 Ms A submitted that by not referring to her as a carer or step daughter and by not treating her as a party to the proceedings, the Guardianship Tribunal did not understand the relationship between Ms A and XS, nor did they have regard to that relationship. The reasons disclose that the Guardianship Tribunal was aware of the relationship between Ms A and XS; indeed the Tribunal prompted XS to disclose that Ms A was his “step- daughter” even though XS and Ms A’s mother had never married.

25 According to Ms B, the Tribunal expressly considered the nature of the existing family relationships through its inquiries as to how much contact she and one of her sisters, JW, had with XS. Ms B submitted that the Tribunal had regard to XS’s existing family relationships with his late de facto partner’s children in the following passages of the decision:

[XS] stated that he saw his de facto’s daughter, [JW], every week. . . . He advised that [Ms A], his attorney, had lived in the same premises as he and his late de facto wife. The Tribunal asked [XS] which person he trusted the most. [XS] replied: “my wife”. [XS] was asked by the Tribunal about his relationship with his sister, [Ms C], and her son [Mr D]. [XS] stated that he was close to his sister and that he trusted her.

. . .

The Tribunal asked about visitors and [the nursing sister] stated that no one comes to visit [XS] very often. She stated that [JW] used to come and take [XS] to swimming occasionally, but there had been problems with this because of his indwelling catheter. . . . [The nursing sister] advised that [Ms A], [XS’s] attorney, visits the nursing home about twice a month. She advised that [Ms A] would bring a cappuccino and sit for 15 minutes with [XS] and then depart. [The nursing sister] advised that [Ms A] takes [XS] out for visits outside the facility a few times a year.

. . .

26 In addition, the Tribunal asked Ms A about her visits to XS. She advised that she visits every few weeks and that every six to eight weeks she attempts to take XS out of the nursing home to the local shops for a coffee or for lunch.

27 The Tribunal obtained evidence about the nature of XS’s relationships with three of his late de facto partner’s daughters. That demonstrates that it understood that those relationships were relevant to the decision it was required to make. But it did not advert to the importance of those relationships in a way which demonstrated that it had engaged in a process of evaluating them when considering whether or not to make a guardianship order. The Guardianship Tribunal knew that it was likely that XS would be moved to South Australia if Ms C were appointed as guardian. In that situation, XS’s existing relationships with his former de factor partner’s daughters would be effectively severed. The Tribunal’s failure to give any indication that it had regard to that matter when considering whether to make a guardianship order is not a technical or formal defect. It amounts to an error of law.

Practicability of services being provided to the person without the need for the making of a guardianship order.

28 Ms A’s submission in relation to this ground of appeal was that there was no evidence before the Guardianship Tribunal to suggest that it was necessary to make a guardianship order to ensure that services were provided to XS. The Tribunal’s reasoning was that if Ms C and Mr D were the guardians, the services would be of a higher standard. According to Ms A, that is not the matter to which the Tribunal must have regard under s 14(2)(d).

29 The Appeal Panel has previously interpreted the obligation in s 14(2)(d) as meaning that the Tribunal must consider whether:

(a) “the person actually needs a guardian because that person may be able to receive all necessary services without a guardian; and

(b) the person in question could receive “the appropriate services without the need for a guardianship order”: IF v IG & Ors [2004] NSWADTAP 3 at [30] and [33].

30 According to Ms B, the Guardianship Tribunal, in its decision, noted:
(i) the services provided by the nursing home and the needs of [XS];

(ii) the assets of [XS];

(iii) that the nursing home was a “sub-optimal facility” which did not have access to stimulation and regular outdoor activities;

(iv) Ms A’s views on the quality of the facilities and the level of care provided at the nursing home;

(v) the fact that Ms A had not made any effort to move [XS] from the “sub-optimal” accommodation despite the fact that he could afford better quality accommodation and care; and

(vi) that Ms A would sell one of [XS’s] assets if she needed to change his accommodation.

31 Ms B says that it is apparent from these and other references that the Tribunal considered XS’s needs and whether Ms A and the nursing home in which XS was residing could provide for those needs.

32 We agree with Appeal Panel’s analysis in IF v IG & Ors [2004] NSWADTAP 3 that s 14(2)(d) includes an implication that the services that would be provided in the absence of a guardianship order, are services that are “appropriate” to the person’s needs. In this case, the Guardianship Tribunal was clearly not satisfied that appropriate services would be provided if a guardianship order were not made. The Tribunal obtained evidence about the services that were being provided to XS and the fact that Ms A had not placed XS in more appropriate accommodation despite the fact that he could afford it. That demonstrates that it understood that the practicability of providing appropriate services without the need for a guardianship order was a relevant matter. In fact, the sole reason given for exercising its discretion to make that order was the desirability of XS being placed in better accommodation and the fact that Ms A had failed, for the past 5 years, to provide XS with that accommodation. The Guardianship Tribunal did “have regard to” the matter in s 14(2)(d) and made no error of law on that count.

Breach of procedural fairness

33 Another alleged error of law in relation to the making of the guardianship order was that the Tribunal denied Ms A procedural fairness by giving her a copy of the Investigation Officers Report, on the morning of the hearing. That report contained the following passages:

[XS] is a 67 year old unmarried man who is a permanent resident of the [nursing home] located in [suburb]. . . . .[XS] has one sister, [Ms C] who resides in South Australia, and no known children. [XS] has a legally appointed enduring power of attorney being [Ms A].

[XS] formally (sic) resided in a property located in [suburb] with his late de-facto partner of many years, [PW] as well as [her] daughter, Ms A. [PW] has three other daughters, [JW], [LP] and the applicant to these matters, Ms B.

34 According to Ms A, the late service of this document meant that she had insufficient time to address the “erroneous” proposition that XS had no children.

35 This ground of appeal fails because first, there is nothing erroneous or adverse in the Investigation Officer’s Report. It is true that XS had no children of his own. Ms A’s relationship with XS is correctly described in the report as being his late de facto partner’s daughter. Secondly, even if there was adverse or erroneous material in the Investigation Officer’s Report, Ms A was given adequate time to consider that material and respond to it. Apart from the time before the hearing commenced, the Guardianship Tribunal had a two-hour adjournment while the members visited XS at the nursing home.

Tribunal’s decision in relation to Financial Management Order

36 The matters about which the Guardianship Tribunal must be satisfied before making a financial management order are set out in s 25G:

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.

37 If the Guardianship Tribunal is satisfied of these matters, and there are no circumstances preventing the making of the order, the next step is to determine whether to appoint a “suitable person” as manager of that estate, or to “commit the management of that estate to the Protective Commissioner”: Guardianship Act , s 25M.

38 The Guardianship Tribunal was satisfied that XS was not capable of managing his financial affairs and there was no dispute about that finding. The Guardianship Tribunal was also satisfied that there was a need for another person to manage those affairs on XS’s behalf. The Guardianship Tribunal concluded that it was in XS’s best interests to appoint a financial manager because his “interests were not being adequately addressed” by Ms A as his attorney. The Guardianship Tribunal noted that Ms A had a conflict of interest in providing funds to meet XS’s current and future needs when she was the major beneficiary of his estate.

39 When determining who to appoint as the financial manager, the Guardianship Tribunal noted at 18, that:

[Ms C] had also indicated to the Tribunal that she did not think she could work successfully with [Ms A], in her role as attorney, to achieve the best outcome for [XS]. As [Ms C] and [Mr D] are appointed as [XS’s] guardians to make decisions about his accommodation, it is important that any financial manager appointed for XS is able to work effectively with them to make and implement decisions about his accommodation which are in his best interests.
Grounds of Appeal in relation to the financial management order

40 According to Ms A, the Guardianship Tribunal erred by taking into account the fact of the guardianship order when deciding whether to make the financial management order. Her submission was that since the only function the Guardianship Tribunal gave the guardians was to make substitute decisions about accommodation, the order was made to allow XS to be moved to better accommodation. Ms A said that if the guardianship order is set aside, the financial management order no longer fulfils the purpose which the Guardianship Tribunal intended for it, that is to allow XS’s accommodation to be changed.

41 We do not agree with that analysis. The main reason that the Guardianship Tribunal decided to make a financial management order was that the existing attorney, Ms A, had a conflict of interest between providing funds to meet XS’s current and future needs and being the major beneficiary of his estate. In those circumstances it was in XS’s best interests for a financial management order to be made and to appoint someone other than Ms A as the manager. The making of the order and the appointment of the manager are two separate decisions. Neither the making of the financial management order nor the appointment of a suitable manager was dependent on the making of the guardianship order.

Appropriate orders

42 The Appeal Panel may make any orders it thinks appropriate in the light of its decision: ADT Act, s 118C(1). Section 118C(2) contains a non-exhaustive list of the kinds of orders the Appeal Panel may make. Those orders are:

(a) an order affirming or setting aside the decision the subject of the external appeal,

(b) an order remitting the matter to be heard and decided again by the person or body that made the decision, either with or without the hearing of further evidence, in accordance with the directions of the Appeal Panel,

(c) an order made in substitution for the decision the subject of the external appeal.

43 We also note that s 118C(3) provides that “[A] decision of the Appeal Panel in relation to an external appeal takes effect on the date on which it is given or such later date as may be specified in the decision.”

44 Having found an error of law in relation to the making of the guardianship order, the appropriate order is to set aside that decision. The Appeal Panel is empowered to remit the consideration of the application for guardianship to the Guardianship Tribunal to be heard and decided again. Alternatively, we may decided to grant Ms A leave to extend the appeal to the merits of the Guardianship Tribunal’s decision and determine ourselves whether or not to make a guardianship order. However, Ms A has submitted that neither the Guardianship Tribunal nor this Tribunal has jurisdiction to make a guardianship order in relation to XS because he is now residing in South Australia. Each party provided written submissions on this issue.

Jurisdiction to consider merits of application for guardianship

45 The Guardianship Tribunal’s submissions pointed out that each Australian State and Territory, except the Northern Territory, has its own guardianship and administration legislation which establishes a board or tribunal with power to make orders for people with decision making disabilities. Each State Supreme Court retains an inherent parens patriae jurisdiction with respect to people with incapacity. While the aims of each jurisdiction’s legislation are similar, the legislative provisions relating to the making of guardianship orders varies widely. Both the NSW Guardianship Act and the Guardianship and Administration Act 1993 (SA) contain provisions which permit the Guardianship Tribunal and the Guardianship Board respectively, to recognise the appointment of guardians in other Australian States and Territories.

46 The Guardianship Tribunal’s usual practice is to make guardianship orders in relation to a person who is present in New South Wales at the time the order is made, regardless of whether or not they are residents of this State. Examples include overseas or interstate visitors and immigrants in detention. On rare occasions, the Guardianship Tribunal has made guardianship orders in relation to a person who has been removed from New South Wales without their informed consent.

47 Unlike the Supreme Court, neither the Guardianship Tribunal, nor this Tribunal, may exercise inherent jurisdiction. That means that the jurisdiction of each body must be construed in accordance with its establishing legislation. In relation to the Guardianship Tribunal, that proposition was noted by Young J in EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501 and is not in contention. The second uncontentious point is that the Guardianship Act does not define the circumstances in which it has jurisdiction to make a guardianship order. The only relevant judicial comment in relation to this issue that was brought to our attention was an obiter remark by Young J in EMG v Guardianship and Administration Board of Victoria that:

The Guardianship Act (NSW) does not actually define the persons who are subject to its operation. However, as the alleged incapable person must be served and as there does not appear to be any provision for service interstate, it would appear that its only jurisdiction is to deal with people who are physically present within NSW at the date of service. Whether that is so or not can be reserved for another day.
48 In this case, XS was physically present within NSW when he was served with the application for guardianship. There is no need to serve the application again if the matter is remitted to the Guardianship Tribunal, or if the Appeal Panel determines the merits of the application. For that reason, Young J’s obiter remarks in EMG are not applicable to the circumstances of this case.

49 The general principle is that a provision of a State statute is presumed not to have extra-territorial operation: Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309 at 363. That common law presumption is reflected, to some extent in s 12 of the Interpretation Act 1987:

(1) In any Act or instrument:
(a) a reference to an officer, office or statutory body is a reference to such an officer, office or statutory body in and for New South Wales, and

(b) a reference to a locality, jurisdiction or other matter or thing is a reference to such a locality, jurisdiction or other matter or thing in and of New South Wales.

(2) In any Act or instrument, a reference to a body constituted by or under an Act or instrument need not include the words “New South Wales” or “of New South Wales” merely because those words form part of the body’s name or title.
50 If the application of the presumption against extra-territoriality would defeat the purpose of the legislation, then it can be assumed that it was the intention of the legislature to override the presumption: Kumagai Gumi Co Ltd v FCT 1999) 161 ALR 699 at 707. In this case, XS was present in New South Wales when the application for guardianship was made and was served with the application. The Guardianship Tribunal made a guardianship order pursuant to which XS moved to South Australia. That order has now been set aside. The issue is not whether a guardianship order made by the Guardianship Tribunal or the Appeal Panel can be enforced in South Australia but whether either of those Tribunals has jurisdiction to make a guardianship order in circumstances where the subject of the order has moved inter-state after the application has been made. In our view, because XS was served with the application while he was physically present in and a resident of New South Wales, consideration of the application does not offend the principle against extra-territorial operation. Consequently both the Guardianship Tribunal and the Appeal Panel have jurisdiction to re-determine that application.

Remit or extend to merits?

51 Ms A urged the Tribunal, if we found we had jurisdiction, to hear and determine the application for guardianship ourselves. She said that because the Appeal Panel includes a non-judicial member who has experience in dealing with people who have a disability, the Appeal Panel is constituted in such a way that it has the expertise to determine such an explanation: ADT Act, s 22. While we agree with that proposition, we consider it more appropriate in the circumstances of this case for the Guardianship Tribunal to determine the application itself in accordance with our findings. The Appeal Panel’s jurisdiction is primarily supervisory, that is, to correct errors of law. It is only in cases where it would be more expedient for the Appeal Panel to determine the merits of an application that it should assume that role. Given that it is likely that the Guardianship Tribunal will be able to list this matter for urgent consideration, we do not regard this as an appropriate case in which to grant leave to extend to the merits of the Guardianship Tribunal’s decision.

Proceedings in South Australia

52 Ms C and Mr D have commenced proceedings before the South Australian Guardianship Board for guardianship and administration in relation to XS. The hearing is scheduled for 2 November 2006. If the South Australian Guardianship Board makes a guardianship order in relation to XS on that day, then Ms B may wish to withdraw her application to the NSW Guardianship Tribunal.

53 Ms A made it clear during the course of the proceedings, that if we set aside the guardianship order and the financial management order she would arrange for XS to be returned to New South Wales. Ms A’s reasoning was that if the financial management order was set aside, her power of attorney would be revived and that would give her the necessary authority to remove XS from his present accommodation in South Australia. It is not our role to make any findings about the legality of Ms A’s intended actions or whether the fact we have not set aside the financial management order makes any difference. However, in our view, it would be in XS’s best interests to remain in South Australia until the issue of guardianship has been resolved. Although the Appeal Panel is not, strictly speaking, exercising a function under the Guardianship Act when determining this appeal it is important that we nevertheless observe the principle in s 4 of that Act that “the welfare and interests” of XS “should be given paramount consideration.” In order to comply with that principle, we have decided that our orders setting aside the guardianship order and remitting the matter to the Guardianship Tribunal, should not take effect until the Guardianship Board in South Australia has determined the application for guardianship in that State. If that decision is delayed or the application is withdrawn, then parties have liberty to apply for a variation of the date specified in orders 2 and 4.

Orders

1. The Financial Management Order made by the Guardianship Tribunal on 26 May 2006 in relation to XS is affirmed.

2. The Guardianship Order made by the Guardianship Tribunal on 26 May 2006 in relation to XS is set aside. This order takes effect on 3 November 2006.

3. Leave to extend the appeal to other grounds is refused.

4. The Guardianship application is remitted to the Guardianship Tribunal to be heard and decided again, with the hearing of further evidence, in accordance with this decision. This order takes effect on 3 November 2006.