N v Protective Commissioner

[2007] NSWADTAP 68

Appeal Panel - External

CITATION:

N v Protective Commissioner and ors [2007] NSWADTAP 68

PARTIES:

APPELLANT
N

FIRST RESPONDENT
Protective Commissioner

SECOND RESPONDENT
Nursing Home Owner 1

THIRD RESPONDENT
Nursing Home Owner 2

FOURTH RESPONDENT
M

DECISION MAKER
Guardianship Tribunal

FILE NUMBER:

078001

HEARING DATES:

1 June 2007

SUBMISSIONS CLOSED:

1 June 2007

 
DATE OF DECISION: 

19 November 2007

BEFORE:

Hennessy N - Magistrate (Deputy President); Millar J - Judicial Member; Whaite A - Non Judicial Member

CATCHWORDS:

Financial management order - review - Opportunity to be heard - Opportunity to respond to adverse evidence - Procedural fairness

MATTER FOR DECISION:

Principal matter

DATE OF DECISION UNDER APPEAL:

12/19/2006

LEGISLATION CITED:

Administrative Decisions Tribunal Act 1997

CASES CITED:

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Bakewell v MacPherson (unreported, SA Supreme Court (Full Ct), 25 September 1992
Kioa v West (1985) 159 CLR 550R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13
Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247

REPRESENTATION:

APPELLANT
P Freed, solicitor

FIRST RESPONDENT
No appearance
SECOND RESPOPNDENT
In person
THIRD RESPONDENT
In person
FOURTH RESPONDENT
No appearance
DECISION MAKER
E Cho, solicitor

ORDERS:

The Tribunal’s decision is affirmed.; The appeal is dismissed.

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.

Introduction

1 M is an elderly woman who lives in a nursing home. She has dementia. The owners of the nursing home in which she resides applied to the Guardianship Tribunal (the Tribunal) in October 2006 for a financial management order because her fees had been in arrears for several years and she was in danger of being evicted. Her son, N, who held a power of attorney on behalf of his mother, opposed the making of a financial management order. The Tribunal held an urgent telephone hearing to determine the application. The Tribunal decided to make a financial management order and to appoint the Protective Commissioner as M’s financial manager. N has appealed against that decision on a question of law: Administrative Decisions Tribunal Act 1997 (ADT Act), s 118(1)(a). N’s grounds of appeal were that the Tribunal did not treat him as a party, did not give him sufficient notice of the hearing, did not consider his evidence and did not give him an opportunity to respond to the evidence of others.

Parties and representation

2 The parties to the appeal were N, the Protective Commissioner, the owner of the nursing home, M and the Tribunal. N was represented by a solicitor, Mr Freed. The Protective Commissioner chose not to play any role in the proceedings. The owner of the nursing home appeared in person. The subject of the financial management order, M, did not appear and was not represented. The Tribunal elected to be a party and Ms Cho represented the Tribunal. In accordance with the principles in R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 at 35, her role is limited to making submissions in relation to the powers and procedures of the Tribunal.

The hearing and the Tribunal’s decision

3 The Tribunal heard the application for financial management urgently on 19 December 2006. The hearing was conducted by telephone. Those participating were the owner of the nursing home, N and N’s daughter and son-in-law. At the beginning of the hearing N asked whether the Tribunal Members had received his letter of 18 December with the attachments. The Tribunal said that it had received those documents and a second letter dated 19 December with further attachments. At the end of the hearing the Tribunal made an order appointing the Protective Commissioner as financial manager. Its written order and reasons were handed down a month later, on 23 January 2007. Amended reasons correcting some typographical errors and adding N’s name as a party to the proceedings were handed down on 23 March.

4 In the original reasons for decision the Tribunal named the owners of the nursing home, M and the Protective Commissioner as parties. In the amended reasons N’s name was added to the list of parties and N’s daughter and son-in-law were added to the list of witnesses. The list of written material considered by the Tribunal did not include the letter dated 18 December 2006 from N containing a statement and other attachments. Nor did that list include a subsequent letter dated 19 December 2006 enclosing some photographs and a copy of the Power of Attorney signed by N’s mother.

5 In its reasons the Tribunal set out the tests which must be met before making a financial management order. In summary, the requirements are that: the person is not capable of managing his or her financial affairs; there is a need for another person to manage those affairs on the person’s behalf; and it is in the person’s best interests that the order be made: Guardianship Act, s 25G. Everyone participating in the hearing agreed that M was not capable of managing her financial affairs and the Tribunal made a finding to that effect. The Tribunal’s next task was to determine whether there was a need for another person to manage those affairs. The Tribunal noted that N had held a power of attorney on behalf of his mother which allowed him to manage her affairs. The Tribunal then set out the evidence from the owner of the nursing home that there had been a long history of unpaid fees and that M’s account had been in arrears by almost $5,000 on occasions. The Tribunal noted that communication with N had broken down and M was in danger of being asked to leave unless her fees were paid.

6 The Tribunal then set out N’s position which was basically that he had been renting out his mother’s house but that the previous tenants, who had not been paying full market rent, had left the property in a bad condition and that renovations and repairs had been required. Currently the property was being rented to N’s daughter and son-in-law for market rent. The Tribunal was not satisfied with N’s explanations as to why the nursing home fees had been in arrears and found that N had not managed his mother’s affairs “generally for her benefit”. Finally, the Tribunal was satisfied that it was in M’s best interests for a financial manager to be appointed so that there could be greater accountability and so that her resources could be used to pay the outstanding fees.

7 Once the Tribunal decides to make a financial management order it may either appoint a “suitable person” (supervised by the Protective Commissioner) or the Protective Commissioner himself as the manager of the estate. N submitted to the Tribunal that he should be appointed as the financial manager of his mother’s estate. His daughter and son-in-law supported that application. The Tribunal set out a list of renovations and repairs that needed to be done to N’s house. That list included: front and back yard, drainage system, problems with all of the fittings, for example, blinds, problems with walls in the bathroom, problems with the wiring in the roof, and problems with fences. The Tribunal concluded that:

On the basis of the information provided by [N], the Tribunal was not satisfied that he was a suitable person to be appointed as financial manager for his mother, [M]. He was unable to explain to the Tribunal why he had not provided a budget for the management of her finances to date. The Tribunal was not satisfied that the current rental arrangement was a sustainable one based on the evidence given by [the son-in-law]. It seemed clear to the Tribunal that [N] had allowed his mother’s property to become run down and had allowed it to be rented to persons known to him at a concessional rate when in fact her financial resources and her own financial needs could not sustain this. The evidence is that there has been a wasting of her financial assets during [N’s] management. In addition he has not been able to keep the nursing home fees up to date and ensure that her basic everyday needs are met from her resources. We are not satisfied that he understands and/or accepts the need for the supervision of the Protective Commissioner.

8 Not given party status. N was a statutory party to the application before the Tribunal because he held a power of attorney on behalf of his mother: Guardianship Act, s 3F(5). In its 23 January decision, the Tribunal did not list him as being a party to the proceedings. That error was corrected in the amended reasons. N said that the Tribunal erred by failing to name him as a party and give him the status of a party.

9 Conclusion. Even though he was not named as a party in the original reasons for decision, N was treated in the same way as a party would have been treated. He was served with a copy of the application for financial management as required by s 10 of the Guardianship Act. He participated in the hearing by phone, as did the owner of the nursing home. The Tribunal corrected its mistake in the amended reasons. Although the failure to name N as a party was an error of law, it was not an error which made any difference to the decision the Tribunal ultimately made: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353 per Mason CJ. For that reason it is not appropriate to set aside the decision on that basis.

10 Notice of hearing. The Tribunal received the application for financial management on 20 October 2006. An investigation officer from the Tribunal telephoned N on 3 November to tell him about the application. No hearing date had been set at that stage. N received a notice of the hearing on 12 December 2006 informing him that the hearing was scheduled for 19 December 2006. He was requested to provide any relevant material to the Tribunal by 15 December. That gave him 3 days. He did not comply with that request but sent the Tribunal evidence under cover of a letter dated 18 December and further evidence under cover of a letter dated 19 December. The Tribunal confirmed during the hearing that it had received all that material. N told the Tribunal that “the whole thing has been too rushed”. The presiding member mentioned that the photos attached to the 19 December letter were not clear because the material had been sent by facsimile. N’s response was that he didn’t get the photos until it was too late to deliver them. He re-iterated that the hearing “was dumped on top of me before I knew it was going without giving me any real time to get the thing across to you”.

11 Legal principles. The Tribunal has a common law obligation to afford procedural fairness to a person whose interests are affected by a decision. N was entitled to procedural fairness as his interest in being appointed as his mother’s financial manager stood to be affected by the Tribunal’s decision: Kioa v West (1985) 159 CLR 550 per Mason J at 584. The hearing rule of procedural fairness requires that a decision-maker give parties reasonable notice of the hearing. Whether or not the period of seven days’ notice was adequate depends on factors such as the complexity of the issues, the material to be considered and any need for urgency: Bakewell v MacPherson (unreported, SA Supreme Court (Full Ct), 25 September 1992, at 21-22.)

12 Conclusion. The factual issues were not complex and there was not a great deal of material to be considered. In addition the hearing was regarded as urgent because the fees had been in arrears for a considerable period and M was in danger of being evicted. Although N was asked to provide the Tribunal with evidence and submissions within a very short time, he managed to provide that information prior to the hearing. Apart from the original photographs, he did not indicate what further material he may have put before the Tribunal had he been given more time or how else he was prejudiced by the fact that he only had one weeks’ notice of the hearing. In all the circumstances we are not satisfied that N was denied a fair hearing because of the length of time he was given to prepare.

13 Ignoring his evidence. N said that the Tribunal did not take into account the evidence that he sent under cover of letters dated 18 and 19 December 2006. It is clear from the transcript that the Tribunal received that material even though it was not listed in either the original or the amended reasons for decision. The Tribunal was unable to find a copy of the material provided on 19 December to give to the Appeal Panel. N provided us with a copy of that material. N said that the Tribunal did not take that material into account when writing its reasons for decision. In particular, he said that the Tribunal concluded, contrary to this evidence, that there was a need for capital works to be carried out on the property. N also provided written evidence of the payments he had made to the nursing home in the previous few months but said that the Tribunal did not refer to that evidence or take it into account in its decision.

14 Conclusion. The Tribunal made its decision at the end of the hearing. The transcript confirms that during the hearing the Tribunal had a copy of all the material that N had forwarded. The fact that the Tribunal did not refer to that material expressly in the reasons for decision does not mean that it was ignored at the time the decision was made.

15 Opportunity to hear and respond to evidence of others. N said that the Tribunal breached procedural fairness because:

a) he did not receive certain documentary material from the Tribunal; and

b) he was unable to hear all of the evidence given by his daughter and son-in-law and by the Director of Nursing and he was not given an opportunity to rebut the evidence that his son-in-law gave about the state of repair of his mother’s house and about two dishonoured cheques.

16 Legal principles. The general rule is that where a person's interests are affected by a decision, and no issue of confidentiality arises, that person should be given an opportunity to respond to adverse information that is credible, relevant and significant to the decision to be made: Kioa v West (1985) 159 CLR 550 at 629 per Brennan J. While every detail of the evidence given in the absence of a party is not required to be put to that party, the substance or gravamen of that evidence should be disclosed: Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247.

17 Receiving documentary material. N received the application for financial management and the attachments to that application. He did not receive a resident ledger for the period May 2000 to September 2006 in relation to his mother that was provided by the owner of the nursing home and he says he did not have an opportunity to comment on that document.

18 Conclusion. The resident ledger is credible, relevant and significant evidence. It demonstrates the extent to which M’s account was in arrears from May 2000 to the end of September 2006. Although the ledger itself was not provided to N, the substance of the information in the ledger was communicated to him. He knew that his mother’s fees had never been fully up-to-date in any month during that time and that he had been in arrears by nearly $5,000. The owner of the nursing home gave evidence to that effect during the hearing. N was given an opportunity to explain why that was the case and he did so. The substance of his mother’s financial history with the nursing home was communicated to him and there was no breach of procedural fairness in the fact that he was not given a copy of the resident ledger which set out that financial history in detail.

19 Hearing and responding to oral evidence. N was connected by phone during the course of the hearing. He said that, apart from the evidence of the owner of the nursing home, he was not privy to the telephone evidence of the Director of Nursing or the evidence of his daughter or son-in-law. Nor did he have an opportunity to respond to the evidence about the state of repair of the house given by his son-in-law.

20 Conclusion. Although the reasons for decision list the Director of Nursing as a person who gave evidence by phone, it is apparent from the transcript that that was not the case. The evidence given by the Director of Nursing was documentary evidence. That evidence was relevant to M’s capacity to manage her financial affairs. As there was no dispute about the fact that M was incapable of managing her affairs, N was not denied procedural fairness by not being given a copy of the material provided by the Director of Nursing. In relation to the evidence given by his daughter and son-in-law, it is apparent from the transcript that N heard that evidence and responded to it in some detail.

Conclusion

21 There were several irregularities in the Tribunal’s decision: N was not initially named as a party; witnesses were listed as having given evidence by phone when they did not do so; and documents which N provided did not appear in the list of documents that were taken into account. These irregularities, together with the fact that the hearing was listed urgently and N was not given copies of all the documents, made him understandably concerned as to whether he had been given a fair hearing. N would have been re-assured if the Tribunal had referred in its reasons for decision, to the documentary evidence and submissions that he had provided . He would also have been less concerned if he had been given a greater opportunity to respond to evidence about the history of arrears and the current state of repair of his mother’s house. Despite these shortcomings, N was given adequate notice of the hearing and was aware of the substance of the material that was adverse to him. While he was not given an unlimited opportunity to respond to that material, procedural fairness only requires that he be given an adequate or reasonable opportunity to respond.

Orders

The Tribunal’s decision is affirmed.

The appeal is dismissed.