P v D1 & Ors - [2011] NSWSC 257

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: P v D1 & Ors [2011] NSWSC 257
Hearing dates: 22 June, 14, 15, 16, 22 & 23 September 2010
Decision date: 04 April 2011
Before: Slattery J
Decision:
The plaintiff's application for leave to appeal against three decisions of the Guardianship Tribunal made on 19 June 2006, 9 January 2007, and 29 January 2009 was not instituted within time under Guardianship Act s 67(2)(b). Further time will not be allowed under Guardianship Act s 67(2)(c). The application for leave to appeal against a fourth decision of the Guardianship Tribunal dated July 2009 is within time. But leave to appeal is necessary, as the application does not involve a question of law. Leave to appeal is refused. Plaintiff ordered to pay defendants' costs.

Catchwords: MENTAL HEALTH - guardians- applications for leave to appeal against four decisions of the Guardianship Tribunal - application brought under Guardianship Act 1987 s67 - HELD - applications out of time in respect of three Guardianship Tribunal decisions - no basis to exercise discretion allowing further time for leave to appeal in respect of these three decisions - none of the appeals for which the plaintiff seeks leave involve a question of law under Guardianship Act s 67(1)(a) - no grant of leave to appeal in respect of the fourth Tribunal decision.
Legislation Cited: Guardianship Act 1987, ss 3(2), 25P, 31, 57, 67(1), 67(2)
Supreme Court Act 1970, s 75A
Uniform Civil Procedure Rules 2005, r 50.
Cases Cited: Akins v National Australia Bank (1994) 34 NSWLR 155
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
C v C [2001] QSC 126
IZ V JC, JB and JA [2009] NSWADT AP 4
K v K [2000] NSWSC 1052
Re R [2000] NSWSC 886
Retarded Children's Aid Society v Day [1978] ICR 437
The Australian Gaslight Co v The Valuer-General (1940) 40 SR (NSW) 126
Category: Principal judgment
Parties: Plaintiff [Not published]
First Defendant [Not published]
Second Defendant [Not published]
Third Defendant [Not published]
Fourth Defendant - Guardianship Tribunal
Fifth Defendant [Not published]
Representation: Counsel:
Plaintiff - n/a
Second and Third Defendants - P. Jeffriess
Fifth Defendant - D.M.Roberts
Counsel:
Plaintiff - Hal Ginges, Hal Ginges and Company
Second and Third Defendants - John McCallum Boyd Boag, Everingham Solomons
Fifth Defendant - Michael McHugh, The Law Company

File Number(s): 2009/46

Judgment

In these proceedings a daughter seeks principal relief that she become her mother's guardian and that she, the daughter, displace her two brothers' existing appointments in this role. But the threshold legal issue is whether the daughter should be given leave under Guardianship Act 1987 (NSW), s 67 to appeal against four decisions of the Guardianship Tribunal ("the Tribunal"). These decisions make or affirm her brothers' appointment as their mother's guardians. Her brothers contend: first, that her application is out of time; and second, that her application does not raise any question of law, so it requires leave to appeal and she should not have such leave. In the result in these reasons the Court agrees with the brothers' contentions.

The Court does not refer to the parties by their actual names but by their positions as the plaintiff or the defendants in these proceedings. In conformity with the policy requirements of Guardianship Act s 57 as they apply to the Tribunal, in these reasons the Court does not publish the names of the person under guardianship nor does it publish material that identifies or is likely to identify the person under guardianship. For this reason the Court does not publish precise addresses or other identifying details of the parties and limited information about some witnesses and places. If further information about the proceedings is required it is obtainable from the Court's file.

Background to the Plaintiff's Application

The plaintiff is the sister of the second and third defendants. The fifth defendant is their mother. The second and third defendants are the appointed guardians of the fifth defendant, and so appointed under Guardianship Act , s16 after hearings before the Tribunal held under Guardianship Act , Part 3. The plaintiff seeks to change these guardianship arrangements. She asks the Court on appeal to appoint her in place of the second and third defendants as her mother's guardian, exercising the Court's power on appeal to "hear and determine the appeal and make such orders as it thinks appropriate in the light of its decision": Guardianship Act s 67(4).

The Tribunal also appointed the third defendant to be the fifth defendant's financial manager under Guardianship Act , Part 3A. The plaintiff challenges this order as part of her application under Guardianship Act s 67. The plaintiff and her brothers have irreconcilable differences about both the guardianship and financial management arrangements that are in the best interests of their mother.

To be appointed the fifth defendant's guardian and financial manager the plaintiff must displace four decisions of the Tribunal made on 19 June 2006, 9 January 2007, 29 January 2009 and 10 July 2009 appointing or giving specific powers to the second and third defendants as the fifth defendant's guardians and to the third defendant as her financial manager. The plaintiff's application to this Court is, in form, an application for leave to appeal against these four Tribunal decisions. If these appeals are successful, the plaintiff seeks orders appointing her as financial manager and guardian of her mother.

The fifth defendant was born in Lithuania in April 1919 and she is now 91. She married her husband Michael, a pilot, in Lithuania before they emigrated together to Australia, when she was in her early 20's. She trained and as a nurse in Lithuania. She worked as a registered nurse in Australia, whilst bringing up the plaintiff and her two brothers at a property in Bronte in the Eastern suburbs of Sydney. She eventually retired at the age of 64 from a nursing post in oncology at the Royal Prince Alfred Hospital. Her husband is now deceased. She is currently being cared for in a nursing home at Tamworth, close to where the third defendant lives. Mr Michael McHugh, a solicitor and her tutor represents her in these proceedings.

The plaintiff and her brothers disagree about the level of care that their mother requires and they have quite different views as to her mental and physical competence. Her tutor submits she is a person who "has a disability" within the meaning of Guardianship Act, s 3(2) due to her advanced age, and her intellectual, physical and psychological impairment. The plaintiff disputes this.

There are two other parties to the proceedings. The first defendant is a real estate agent who was commissioned to sell the former family home of the plaintiff, her brothers and their mother in the Sydney suburb of Bronte ("the Bronte property"). The fourth defendant is the Tribunal itself. Both the first defendant and the Tribunal have filed submitting appearances.

The Guardianship Act requires the plaintiff to deal with two discretionary questions before she can proceed with her appeals. First, only the plaintiff's appeal against the last of the Tribunal's four decisions under appeal, the decision of 10 July 2009 is within the Guardianship Act , s 67(2) 28-day time limit for an appeal. The plaintiff must seek the Court's exercise of discretion to grant further time within which to appeal against the first three Tribunal decisions. Second, unless the plaintiff identifies a question of law in her proposed appeal, she must obtain the Court's leave to appeal to this Court against a decision of the Tribunal: Guardianship Act, s 67(1). There is a contest about whether she should have such leave.

The second and third defendants oppose any grant of leave to the plaintiff. They contend that three of the plaintiff's four appeals are, without explanation, out of time by up to 3 years; and that, were the Court to grant leave, the plaintiff should not be allowed to rely on allegedly new evidence, nor has she presented any grounds upon which the Court might find for her on appeal. They submit that the plaintiff must first prove that any new evidence she advances must be shown to be credible and relevant and be shown to be evidence that was unavailable at the time of the original hearing: Akins v National Australia Bank (1994) 34 NSWLR 155 at 160. The second and third defendants' say the plaintiff's evidence is a mere restatement of the evidence originally placed before the Tribunal.

The plaintiff has several answers to these contentions: that her admitted delay in the commencement of the application for leave to appeal to this Court was due to her inability to find legal representation; that she made unsuccessful applications for legal aid; and that she had insufficient time to prepare for the Tribunal hearings. She submits that leave to appeal is not required and alternatively should be granted in part based upon her fresh evidence.

When the hearing commenced the plaintiff had not identified her grounds of appeal. The identification of grounds of appeal is necessary for the Court to analyse: whether the plaintiff raises a "question of law" within Guardianship Act , s 67(1)(a) and has an appeal as of right; or whether the plaintiff has grounds that warrant a grant of leave under Guardianship Act , s 67(1)(b). The defendants rightly contended that they were entitled to know of the plaintiff's grounds of appeal. But the plaintiff was without legal representation until a few days before the hearing, which commenced on 22 June 2010. The plaintiff was requested to provide her grounds of appeal. She was very tardy in doing this, which hampered the orderly conduct of the proceedings before me. She eventually stated some less than adequate grounds at the end of the hearing.

On 22 June 2010 when the proceedings were first called on, the plaintiff sought an adjournment. She had only then very recently engaged the solicitor who represented her before me, Mr H.J. Ginges. She submitted through Mr Ginges that there was still evidence that she wished to serve. The second, third and fifth defendants opposed any adjournment. The matter had been set down for two days. Once the adjournment application was argued and the range of matters in issue made clear it was evident that the proceedings could not finish within the time originally allotted for the hearing. In the result the Court commenced the hearing, permitting the plaintiff and the defendants to read all their then filed evidence and making some evidentiary rulings.

Then the Court adjourned the matter part heard to 14 September 2010. In the meantime procedural orders were made for the filing of supplementary evidence and to permit the plaintiff on her application to have an opportunity to have the fifth defendant examined by a geriatrician before the resumed hearing. During the adjourned period the plaintiff did not arrange for a geriatrician to examine the fifth defendant. This had consequences for assessing the medical evidence upon the resumed hearing.

The third defendant as the fifth defendant's financial manager has taken out a mortgage over the Bronte property to meet expenses associated with the fifth defendant's guardianship, legal expenses and expenses for her nursing home care. Before the matter adjourned to September 2010 there was a contest about the refinancing of the existing mortgage over the Bronte property in an increased amount of $250,000. The plaintiff contended that the refinance should only be for six months. The defendants contended for a 12-month refinance period. The Court decided that the mortgage could be refinanced for a period of 12 months to June 2011 to allow an opportunity for the orderly sale of the Bronte property if that were the practical result of my decision.

On 23 September 2010 at the conclusion of the resumed hearing the plaintiff applied for a further adjournment. The reason she gave for seeking this adjournment was that she said she had made an application for financial accommodation and expected in a week's time to have the funds to obtain a medical report about the fifth defendant's condition. The Court refused her application. The Court was then about to reserve judgment. The Court found that the application for financial accommodation was too late and an adjournment at that stage would defer yet again the certainty that all parties were entitled to from this proceeding.

The second and third defendants' case is that all the issues the plaintiff now raises have already been raised and decided in the Tribunal hearings and nothing has changed since. The assessment of these contentions required the Court to examine an extensive volume of evidence that the plaintiff advanced and too see whether indeed any of it was new and worthy of a grant of leave to appeal.

The Course of Proceedings before the Tribunal

An understanding of the history of the proceedings before the Tribunal as they unfolded is an essential platform for analysis of the matters presently in issue. This history is best approached using the structure of the six Tribunal hearings and decisions between June 2006 and July 2009. The plaintiff only applies for leave to appeal against four of these six Tribunal decisions, namely the first, second, fifth and sixth decisions. Unless disturbed on appeal the findings of the Tribunal in these various decisions bind all the parties.

First Tribunal Decision - June 2006

Prior to the first Tribunal hearing and decision on 19 June 2006 ("the June 2006 decision") the fifth defendant had lived at the Bronte property for many years with the plaintiff as her companion and informal carer and later, guardian. A social worker and the second and third defendants were prompted to initiate the first Tribunal hearing to examine a number of their claims about serving the best interests of the fifth defendant, including: the squalid conditions in which she was living with the plaintiff, the plaintiff's inability to recognise the health risks to the fifth defendant associated with their living in at the Bronte property with animals inside the house producing insanitary conditions; the fact hat the plaintiff appeared to be refusing to accept independent service providers coming to the Bronte property to clean and improve it and to assist caring for the fifth defendant; and that the plaintiff was mixing her own finances with those of the fifth defendant to the fifth defendant's disadvantage. These and other issues made up the first contest before the Tribunal about the fifth defendant's need for a guardianship order.

But behind these issues the second and third defendants and the plaintiff are in a deeper contest about the future care of the fifth defendant. These deeper issues emerged at the first Tribunal hearing and were still in active contest before me four years later. The real contest between the parties was as to plaintiff's claim about her mother's future accommodation. The plaintiff claimed that it was in the best interests of her mother for her to live at the Bronte property with the plaintiff because she claims that that the fifth defendant does not wish to live in a nursing home. For this reason the plaintiff resists any outcome that involves or risks the sale of the Bronte property as that will foreclose the possibility of her return to Bronte with her mother. The second and third defendants say that the plaintiff has demonstrated that she cannot care for her mother at Bronte and that the fifth defendant's overall condition is such that in home care is no longer suitable for her. The plaintiff will not accept this.

The fifth defendant's social worker, Ms Kate Daley made this first application to the Tribunal. She applied for the appointment of a guardian and a financial manager for the fifth defendant. The parties to the application for guardianship before the Tribunal on this occasion were the fifth defendant, Ms Kate Daley, the plaintiff and the Public Guardian. In relation to the application for financial management the Protective Commissioner was a statutory party.

Ms Daley's evidence before the Tribunal was that the fifth defendant had severe arthritis, was frail, bed bound and unable to care for herself and that she exhibited mild cognitive impairment. She also gave evidence that there had been up to that time a four year history of service providers trying to assist the fifth defendant and her daughter, the plaintiff, at the Bronte property but that the plaintiff consistently refused any such help. The evidence was that the plaintiff was finding managing the situation increasingly difficult. The fifth defendant was said to have unrealistic expectations of her daughter.

The Tribunal heard evidence from the Geriatrician, Dr Shahrzad Jahromi who had examined the fifth defendant, from the fifth defendant, from Ms Kate Daley, from the plaintiff, from the second and third defendants, and from a friend and neighbour Mr Joseph Steiblys.

The Tribunal accepted the evidence of Ms Daley and Dr Jahromi, which the Tribunal found "confirmed the level of squalor" at the Bronte property. The Tribunal also accepted the evidence of the second and third defendants that "they were no longer able to access the house" to see the fifth defendant and to see the provision of services to her. The Tribunal accepted the second and third defendants' evidence that "there were animals throughout the house" and that there were "animal faeces and the smell of urine everywhere".

The Tribunal rejected the plaintiff's case that the Bronte house was either not in a state of squalor or was capable of being cleaned up quickly. The Tribunal found that "there was no guarantee that the home will be kept in a clean, appropriate and health enhancing condition unless there was ongoing monitoring and service provision for both cleaning and caring for the home and providing personal care services to [the fifth defendant]." The Tribunal decided to give a temporary guardian power to decide what services were provided, and to override the objections to service providers entering the home and providing services.

The Tribunal made the following findings about the fifth defendant's capacity and need for a guardian:

" Guardianship - Disability and Incapacity determined

The Tribunal had regard to all the evidence, both written and oral including the evidence of [the fifth defendant] and the oral evidence about the disability and incapacity given by Dr Jahromi at the hearing. The Tribunal found [the fifth defendant] had a cognitive disability. When the Tribunal spoke to [the fifth defendant] she was unable to explain the reasons for her major decisions. She gave direct responses and dealt with minor matters quite easily. She was fixated upon her daughter providing care for her and being with her all the time; and that she not go to a nursing home. She also emphasised that she wanted privacy and she did not want anyone else involved. That evidence given by [the fifth defendant] was consistent with the opinion given by Dr Jahromi about the cognitive disability of [the fifth defendant]. The Tribunal observed throughout the hearing that [the fifth defendant] was very dependent on her daughter [the plaintiff] and would not make decisions independently from her daughter.

The Tribunal was satisfied upon all the evidence that [the fifth defendant] cannot make life decisions due to that cognitive disability.

Appointment of a guardian

The Tribunal was satisfied that [the fifth defendant] required a guardian because she could not reason the facts and circumstances involved in determining whether or not she required service providers. She was adamant that she did not require service providers as did her daughter. She was equally adamant that her daughter should be providing care for her 24 hours, 7 days a week. She had no insight into the level of the squalor of the home and indeed denied that there was any squalor. The Tribunal rejected that opinion which was also advanced by her daughter [the plaintiff]; preferring the evidence of the applicant, Dr Jahromi and the sons.

The Tribunal was not satisfied that [the plaintiff] could be appointed as a guardian. Her denial of the state of repair and cleanliness of the home and her self interest for financial reasons in not wanting service providers showed she was not able to bring independently informed decision making to the role of guardian."

Over the plaintiff's opposition the Tribunal was satisfied that the third defendant should be appointed as guardian on a temporary basis for six months. The Tribunal determined that the plaintiff's opposition in the circumstances "did not carry any great weight" because the Tribunal found she was motivated "not to have any involvement by persons outside the household and did not want any decision made which would involve paying for service providers". The Tribunal made the following formal findings:-

" FORMAL FINDINGS

The Tribunal made the following formal findings:-

Guardianship

(1) [The fifth defendant] is a person who has a disability and, as a consequence, is at least partially incapable of managing her person.

(2) The circumstances of the case make it necessary and appropriate in [the fifth defendant's] interests for a guardian to be appointed for her with the functions referred to in the order and for the period and subject to the conditions referred to therein.

(3) The guardian meets the requirements for appointment as the private guardian of [the fifth defendant]."

The Tribunal then appointed the third defendant as the fifth defendant's guardian. Following the June 2006 decision the fifth defendant stayed at the Bronte property for a period but the third defendant moved her for respite care into the Amity Nursing Home at Queens Park in December 2006. When the fifth defendant left the Bronte property the plaintiff continued to live there.

Second Tribunal Decision - January 2007

The fifth defendant was resident of the Amity Nursing Home when the second Tribunal hearing and decision took place on 9 January 2007 ("the January 2007 decision"). Financial management for the fifth defendant was a principal issue for the second Tribunal hearing. The plaintiff was still managing the fifth defendants' finances herself but the Tribunal's findings were that she was mixing those finances with her own. It was not clear to the Tribunal that the plaintiff's methods of financial management met the true financial needs of the fifth defendant.

The persons who gave evidence at this second hearing were Ms Kate Daley, the plaintiff, the second defendant, the third defendant and Ms Larissa O'Donnell, the Director of Nursing at Amity Nursing Home. All these persons other than the plaintiff doubted that the then existing financial arrangements for the fifth defendant were satisfactory. The fifth defendant was unable to express a reliable opinion herself. The Tribunal had allowed the plaintiff to arrange the conduct of the fifth defendants' finances to see if she could conduct them separately from her own finances. But the Tribunal's findings, set out below, showed that the plaintiff was not able to use the adjournment period to prove her good management of the fifth defendant's finances.

At the January 2007 hearing the plaintiff continued to maintain that the fifth defendant did not need a guardian or a financial manager. But the plaintiff agreed that if the Tribunal was to appoint a guardian that the second and third defendants could be joint guardians. This meant that the existing orders should be varied. The plaintiff took a similar position with respect to the plaintiff's financial management. She did not see the need for a financial manager but if the Tribunal was to order that one be appointed she did not object to the appointment of the second defendant as financial manager, so that decisions could be made about the fifth defendant's welfare. The plaintiff maintained that she was the one best placed to look after her mother in the family home at Bronte and she claimed that the fifth defendant favoured that outcome as well.

There was no new medical evidence before the Tribunal at the January 2007 hearing. The Tribunal's January 2007 decision records that the Bronte property was in a state of squalor, was unhygienic and was a place inappropriate for a person in frail health. The Tribunal further found that the plaintiff was unreliable and self-serving in her evidence, demonstrated no insight into her mother's needs and that the plaintiff was wrongly blaming others for misrepresenting the state of cleanliness of the home.

The Tribunal made the following findings in the January 2007 decision about the plaintiff and about the fifth defendant's financial management and accommodation. The Tribunal found that "there was no evidence given by [the plaintiff] that she was conducting the financial affairs of her mother and meeting her mother's needs as required" and that the plaintiff had 'failed to provide any documentation nor did she give any evidence of how she had separated the finances of herself and her mother, despite her undertaking to do so at the last hearing" and that further the plaintiff "had failed to make proper arrangements for the respite care payments to be made to Amity Nursing Home". The result of these intermediate findings was that the Tribunal concluded that the plaintiff "would give no proper consideration of her mother's needs with respect to finances", that the plaintiff was "very self absorbed about these matters and that the plaintiff "gave no evidence to indicate what the real position was". When this Court was asked to consider what the plaintiff alleged was fresh evidence it was remarkable how the evidence still justified the drawing of these same conclusions from the additional evidence. The Tribunal further concluded that the plaintiff "demonstrated an inability to separate her interests from that of her mother to weigh up what was in her mother's best interests and so was not a person who was suitable to make decisions for her mother." The Tribunal rejected the plaintiff's disparagement of the second and third defendants and found that they were genuine in their concern for the fifth defendant.

This second decision of January 2007 created guardianship appointments for three years. The appointments made under this second decision continued up to the time of the hearing before this Court in September 2010. But the plaintiff is also not satisfied with this decision. It is the second of the four decisions against which the plaintiff appeals.

Third Tribunal Decision - August 2008

Between January 2007 and January 2009 Tribunal made two more decisions, the third and fourth decisions, against which the plaintiff does not seek leave to appeal. The Tribunal's third decision was made on 21 August 2008 ("the August 2008 decision"). The Tribunal's fourth decision was made on 24 September 2008 ("the September 2008 decision"). These two decisions arose out related Supreme Court proceedings for possession.

The plaintiff remained in possession of the Bronte property after the fifth defendant had gone into the Amity Nursing Home. But the second defendant, acting as financial manager reported to the Protective Commissioner in March 2007 that the fifth defendants' recurrent expenditure in relation to the Bronte property and in relation to her nursing home accommodation exceeded her pension income and that it may therefore be necessary to sell the Bronte home to provide liquid funds for her needs. On 21 May 2007 the office of the Protective Commissioner authorised the second defendant to bring proceedings against the plaintiff to obtain vacant possession of the Bronte property.

In June 2007 the second defendant demanded possession of the Bronte property and demanded that the plaintiff vacate the property. The second defendant then filed a Statement of Claim seeking judgment for possession of the Bronte property and leave to issue a writ of possession. This process was served on the plaintiff on 7 January 2008.

The plaintiff's response was immediate. She lodged an application in the Tribunal seeking to revoke the financial management order, which authorised the second defendants' financial management of the fifth defendant's affairs. This application did not progress to hearing before the Tribunal before the application for possession came before the Common Law Division of this Court on 31 July 2008.

Associate Justice Harrison entered judgment for the third defendant for possession of the Bronte property on 7 August 2008. It is evident from that judgment that the plaintiff argued that if the property at Bronte were to be sold and if the fifth defendant was successful in the Tribunal, that the fifth defendant would be deprived of the opportunity of living with the plaintiff back in the Bronte property. This argument then put to the Supreme Court was very similar to the argument she advanced before me in 2010.

The solicitor then appearing for the plaintiff acknowledged that the plaintiff only had a claim to an equitable interest in the property against her mother, the registered proprietor, on the basis that the plaintiff had been promised the right to live on the property for the rest of her life. However, the lack of progress in the then pending Tribunal hearing and the lack of demonstrable prospects of success of that hearing were a basis for Associate Justice Harrison to refuse a stay of the proceedings for possession.

Two weeks later the third Tribunal hearing on 21 August 2008 took place. At this third Tribunal hearing the plaintiff sought a review of the existing Guardianship and financial management orders. The Tribunal found that the fifth defendant did wish to return to the Bronte property to be cared for by the plaintiff, who supported this result. However the Tribunal found that "it was not satisfied on the evidence that [the plaintiff] has no undue conflict of interest and would be able to exercise the functions of the relevant Guardianship order". The Tribunal repeated a finding made in its January 2007 decision that the plaintiff "was well intentioned but she demonstrated an inability to separate her interest from that of her mother to weigh up what was in her mother's best interests". The Tribunal concluded, "there was no evidence of any change in the plaintiff's attitude and approach with respect to her mother's financial affairs." The Tribunal confirmed the existing Guardianship order made in the January 2007 decision.

In the August 2008 decision the Tribunal also declined to review the existing financial management order. The Tribunal made findings that the plaintiff: had refused access to the Bronte property, had over a lengthy period of time frustrated directions issued by the Office of the Protective Commissioner to secure the title to the property or vacate the property, resulting in a financial detriment to the fifth defendant. The Tribunal confirmed the financial management order made in January 2007.

Fourth Tribunal Decision - September 2008

A month later an incident occurred that the parties pressed upon the Court's attention in evidence. The plaintiff removed the fifth defendant from the Amity Nursing Home in Queens Park and did not return her. She took the fifth defendant to the Bronte property, and declined to return her to the Nursing Home after a routine daily outing. This incident urgently brought on the fourth Tribunal hearing on 24 September 2008. On 22 September 2008, the day after the plaintiff removed the fifth defendant from the Queens Park Amity Nursing Home the Tribunal found that the third defendant contacted the Tribunal and requested an immediate review of the current Guardianship order so as to have the additional functions of coercive accommodation and access added to the functions already given to the two Guardians. Although neither the plaintiff nor the fifth defendant was present or represented at this hearing, because of the urgency of the situation the Tribunal decided to confer coercive and access functions to the second and third defendants as the fifth defendant's Guardians to determine where the fifth defendant resided and to authorise others including the New South Wales Police Force and Ambulance Service to take her from her present location to a place of residence approved by the Guardians.

The orders were effective. On 25 September 2008 the fifth defendant returned to the Queens Park Amity Nursing Home. Shortly after her return to the Amity Nursing Home the fifth defendant was assessed by Professor Skye McDonald, who concluded:

"In conclusion [the fifth defendant] is a physically frail 89 year old woman who is not severely cognitively impaired on simple tasks. Nonetheless, she shows limited reasoning with respect to her own welfare. This may indicate cognitive impairment as a result of age and/mild dementia. But, in addition, it appears that she and her daughter have a very close relationship and a shared goal, which they mutually encourage and which is very emotionally charged for [the fifth defendant]. This makes it difficult for her to consider alternate points of view and relevant issues that need to be addressed in order to achieve her goal. It also makes it difficult for her to adjust to her existing situation and consider how this could be improved."

The plaintiff appealed from the fourth Tribunal decision of September 2008 to the Administrative Decisions Tribunal. Her appeal was dismissed on 23 January 2009: IZ V JC, JB and JA [2009] NSWADTAP 4.

That concludes the account of the events in 2007 and 2008, which have not resulted in further appeals to this Court. But the fifth and sixth Tribunal decisions, of January 2009 and July 2009 are the subject of appeal.

Fifth Tribunal Decision - January 2009

The Tribunal made a fifth decision in relation to the financial management of the fifth defendant on 29 January 2009. By the time of this decision the fifth defendant had been relocated to another Amity Nursing Home facility in Tamworth. The application purported to be brought by the fifth defendant herself. In the form of the application the fifth defendant apparently asserted that she was capable of managing her own affairs. The application was by way of review of the existing financial management order under Guardianship Act , s 25P. The application had been made in September 2008. The Tribunal dismissed it in January 2009 because the Tribunal was not satisfied that the fifth defendant understood that she had even made such an application to review her existing financial management order. It appeared to the Tribunal that the application may have been drafted by others without the fifth defendant's knowledge.

The plaintiff was evicted from the Bronte property on the 18 th of February 2009. A few days later she lodged a caveat over the Bronte property claiming an equitable interest in the property as a life tenant as allegedly promised by the fifth defendant. Another caveat was lodged over the Bronte property making related equitable claims to an interest in the property. The second caveat was lodged in May 2009 and has also lapsed. Lapsing notices were served in respect of these first two caveats. At the time of hearing the second defendant was seeking to liaise with the Office of the Protective Commissioner with a view to organising the sale of the Bronte property. In this contest the sixth Tribunal hearing occurred.

Sixth Tribunal Decision - July 2009

The sixth Tribunal hearing took place on 10 July 2009. The Tribunal gave its decision the same day. This decision resulted from an application that the plaintiff made on 3 April 2009 seeking a review of the existing Guardianship order. The Tribunal confirmed the previous orders appointing the second and third defendants as the fifth defendant's joint Guardians. The plaintiff sought an order adjourning the hearing to allow the fifth defendant to be examined by a clinical psychologist and a geriatrician. But upon hearing other medical evidence the Tribunal was not satisfied that an adjournment for the purpose of medical examination was warranted. The Tribunal declined to revoke the Guardianship order. The Tribunal also dismissed the plaintiff's criticisms of the Guardians' management of the fifth defendant and found that there was no warrant to remove the current Guardians or to appoint the plaintiff in substitution for them. The plaintiff did not seek revocation of the financial management order as part of this hearing.

After the sixth Tribunal hearing the plaintiff lodged a third caveat over the Bronte property claiming a life interest in return for her investment of capital and performance of maintenance works on the Bronte property. This caveat also lapsed upon the application of the second and third defendants.

Within a month the plaintiff returned to Court with a Summons seeking to restrain the sale of the Bronte property, which was to be auctioned on 15 September 2009. The sale of the Bronte property was restrained by the order of Rothman J on 15 September 2009 and the proceedings before his Honour were adjourned part heard. The restraint upon the sale of the Bronte property is still in place.

This sets out the general background to these proceedings including the course of events up until the application before me.

Applicable Legal Principles

The plaintiff proceeds to this Court through the gateway of Guardianship Act , s 67. Until the passing of the Guardianship Act this Court had unlimited authority to deal with the persons and the estates of incapable persons for their own benefit. The Supreme Court inherited this power from the Lord Chancellor's jurisdiction as it had developed up to the eighteenth century. To reduce expense and promote decision making with a degree of specialist knowledge, in 1987 the legislature created the Tribunal under the Guardianship Act , and gave the Tribunal most but not all of the jurisdiction formerly within this Court's jurisdiction. The new legislation preserves this Court's jurisdiction: Guardianship Act , s 31. But the Court was also given supervisory and appellate jurisdiction over the Tribunal: Guardianship Act , s 67. Young J gives a convenient summary of this legislative history in K v K [2000] NSWSC 1052, [13], [14] and [15].

Guardianship Act s 67 relevantly provides as follows:-

"67.

(1) A party to a proceeding before the Tribunal (whether under this or any other Act) may appeal to the Supreme Court from any decision of the Tribunal in that proceeding:

(a) as of right, on a question of law, or

(b) by leave of the Supreme Court, on any other question.

(1A) A person who has appealed to the ADT under section 67A against a decision of the Guardianship Tribunal may not appeal to the Supreme Court under this section in respect of the same decision. However, the person may appeal to the Supreme Court under this section if the appeal under section 67A is withdrawn with the approval of the ADT for the purpose of enabling the Supreme Court to deal with the matter.

(2) An appeal by a person under this section is to be instituted:

(a) in the case of a prescribed decision made by the Tribunal in the exercise of a function under section 51A or of a decision made in the exercise of a function under section 64 (2)-within the period ending 28 days after the relevant decision has been made, or

(b) in any other case-within the period ending 28 days after the day on which the written instrument setting out the formal reasons for the decision is furnished to the person, or within such further time as the Supreme Court may, in any case, allow.

(3) The Supreme Court shall hear and determine the appeal and may make such orders as it thinks appropriate in the light of its decision.

(4) Without affecting the generality of subsection (3), the orders that may be made by the Supreme Court on an appeal include:

(a) an order affirming or setting aside the decision of the Tribunal, and

(b) an order remitting the case to be heard and decided again by the Tribunal (either with or without the hearing of further evidence) in accordance with the directions of the Supreme Court.

(5) Subject to any interlocutory order made by the Supreme Court, an appeal operates to stay the decision appealed against.

(6) The Tribunal is not liable for any costs relating to:

(a) an order or decision of the Tribunal in respect of which an appeal is made, or

(b) any such appeal.

(7) In this section:

prescribed decision means a decision made in the exercise of a function under:

(a) section 36 in respect of giving consent to minor treatment, or

(b) Part 5A, or

(c) Division 2 of Part 6, or

(d) section 67E."

The legislature has committed the primary working machinery of the Guardianship Act to the Tribunal and its decisions are to be given great weight; but it is probably inaccurate to describe the Tribunal as a "specialist" Tribunal: K v K [2000] NSWSC 1052, [14]. On appeal under s 67 the Court's approach is to deal with a matter broadly and fairly and not to interfere if the Tribunal members have directed themselves properly and fairly on the facts and have not erred in law: Retarded Children's Aid Society v Day [1978] ICR 437 at 443; Re R [2000] NSWSC 886 and K v K [2000] NSWSC 1052, [14]. But one of the functions of the Court is to ensure that the Tribunal has guidance upon the proper interpretation of this legislation so that the Tribunal is integrated into the machinery of justice applicable in this field of jurisprudence.

It has not been clearly decided in what circumstances the Court will grant leave to appeal under s 67: the issue has been touched upon in a number of cases: see for example Re R [2000] NSWSC 886 and K v K [2000] NSWSC 1052. In K v K at [15] Young J suggested that leave may be granted in respect of "broad questions of administration and policy and the applicability of policy to individual cases, even if they are not questions of law". But here the plaintiff has not identified any such questions of policy, nor are any such questions obvious from the four Tribunal decisions from which appeals are now sought. This case is about the circumstances of the fifth defendant and the guardianship orders made in respect of her. It is to be approached as one in which the plaintiff seeks the Court's leave to appeal against findings of fact.

If a "question of law" is identified, then there is a right to appeal: Guardianship Act s 67(1)(a). Here the plaintiff was only seeking to disturb the Tribunal's findings of fact. The classic statement of circumstances in which a question of law can be found by an appellate tribunal where the appellant seeks to disturb findings of fact is in the judgment of Jordan CJ in The Australian Gaslight Co v The Valuer-General (1940) 40 SR (NSW) 126, at 137-138 which in summary is that: a finding of fact by a tribunal of fact cannot be disturbed if the facts referred to by the tribunal on which the finding is based are capable of supporting its finding and there is evidence capable of supporting its inferences; such a finding can only be disturbed if (a) there is no evidence to support its inferences, (b) if the facts inferred by it and supported by evidence are incapable of justifying the finding of fact based on those inferences, and (c) the tribunal of fact had misdirected itself in law: see also Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 and Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. Here the plaintiff's argument did not identify any particular factual finding of the Tribunal for which there was no evidence to support the finding or the Tribunal's inference from it. Indeed the plaintiff did not seriously attempt such an exercise in the course of submissions. This is not a criticism of the plaintiff's legal advisers, as all the Tribunal's decisions appealed from appeared to the Court to be carefully reasoned with clear findings of fact on matters relevant to the Tribunal's jurisdiction and the disposition of the matters in issue. Really the only question in this case for the Court is whether leave to appeal should be granted from any of the Tribunal's four decisions "on any other question", that is any question other than a question of law: Guardianship Act s 67 (1)(b).

But the question of the subjects on which leave to appeal should be granted is more uncertain. In K v K [2000] NSWSC 1052 at [15] Young J described the Court's approach to granting leave under Guardianship Act , s 67(1)(b):-

"[15] It would seem to me that s67 of the Guardianship Act operates so that broad questions of administration and policy and the applicability of policy to individual cases, even if they are not questions of law, may well be subjects on which the Court will grant leave to appeal. On the other hand, it is very unlikely that the Court will grant leave to appeal when there is a problem with a fact finding exercise unless there are clear indications that the Tribunal has gone about that fact finding process in such an unorthodox manner or in a way which is likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed."

Young J's statement provides present guidance. The plaintiff's application attacked the Tribunal's fact finding, although not very clearly. One of the Court's tasks on this application has been to look at the Tribunal's decisions appealed from and to see whether the Tribunal had gone about that fact-finding process in a way, which is likely to produce an unfair result and should now be reviewed in the interest of justice. As the reasoning below shows I have found the plaintiff's criticisms of the Tribunals fact-finding processes unjustified. It is now useful to examine the issues that the plaintiff's application presents.

Appeals Out of Time

Three of the plaintiff's four appeals are out of time. The Tribunal's first decision of June 2006, its second decision of February 2007 and its fifth decision of January 2009 are all out of time. The Summons commencing these proceedings was filed on 8 September 2009. Appeals against the Tribunal's decisions must be instituted either within 28 days of the relevant decision being made or within 28 days of the date on which the formal reasons for decision were furnished: Guardianship Act , s 67(2)(a) and (b). In consequence the plaintiff must seek the Court's exercise of discretion to allow "further time" to permit the appeal to be heard: Guardianship Act , s 67(2)(c).

The appeal against the Tribunal's sixth decision made on 10 July 2009 is within time. This is because the Tribunal's reasons for the making of that decision were not furnished to the parties until 18 September 2009. The Summons was filed before that date.

It is first necessary to assess the significance of the timing issue. In my view the fact that the plaintiff's appeal in respect of the July 2009 decision is within time reduces the significance of the defendant's arguments that she is out of time in respect of the June 2006 decision, the January 2007 decision and the January 2009 decision to the extent she wishes to challenge the guardianship orders that the Tribunal has made. The last Tribunal decision was to the following effect:

"The Tribunal dismisses the application of [the plaintiff] seeking the revocation of the Guardianship order currently applying to her mother [the fifth defendant]. The Tribunal also dismisses the application of [the plaintiff] seeking a variation of the current Guardianship order in place in respect of her mother [the fifth defendant] whereby [the plaintiff] seeks the removal of current guardians and herself appointed in substitution".

The plaintiff's contentions before this Court were in substance no wider than seeking reversal of this sixth decision. She still wanted removal of the second and third defendants from their positions as Guardians of the fifth defendant and for her to be substituted in their place. Were the Court to allow the appeal against the July 2009 decision and to reverse the order made by the Tribunal any vacation of existing Guardianship orders would date from 10 July 2009. The only advantage to the plaintiff in pursuing the earlier appeals against the first, second and fifth Tribunal decisions would be to backdate the vacation of the Guardianship orders to a date earlier than 10 July 2009. The plaintiff's reasons for vacating the orders at these earlier dates is a matter relevant to the exercise of the Court's discretion to extend time under Guardianship Act, s 67(2)I.

Should Time be Extended?

The question now arises whether time should be extended in respect of the plaintiff's appeals against the Tribunal's June 2006, January 2007 and January 2009 decisions. In my view, for the considerations identified in this section time should not be extended.

Delay Unexplained. A prospective appellant seeking the exercise of the Court's discretion to allow further time under Guardianship Act, s 67(2) should provide an explanation for the delay in prosecuting the appeal in time and advance grounds for the extension. The plaintiff's case is that she did not lodge appeals against these three decisions within time because she tried to obtain further advice or legal assistance but was unsuccessful in doing so.

This explanation is not persuasive. She gives no other explanation. The plaintiff has not provided evidence of the attempts she has made to obtain legal assistance and the reasons that she was unable to do so. I am not able to infer in her case, without more detailed financial evidence from her, that lack of sufficient financial means is an overwhelming obstacle to her obtaining some legal assistance. She does own real property in the Blue Mountains. Whilst she does not obviously appear to be a person of substantial means there is no complete financial evidence, which would confirm that she has been unable for financial reasons to obtain legal advice since June 2006 to prosecute appeals against the Tribunal's decision. Her applications for legal aid, as Exhibits A and B show, have been declined in 2007 and 2008 partly on the basis of the value of the real estate she owns and she has been found by the Legal Aid Commission to have net assessable assets of $129,689 as at April 2008. But this may only confirm an inference against her that she has sufficient means to engage lawyers. Just before these hearings came on she did in fact engage Mr Ginges, although the precise basis on which his firm was engaged is unclear. I am not prepared to accept the plaintiff's own evidence that she has been unable to engage lawyers. Her evidence in my view is generally unreliable.

No Prejudice to the Plaintiff. Nor am I prepared to infer in the plaintiff's favour that she has not had access to lawyers since June 2006. The objective evidence is to the contrary. For example, I infer from the form of the caveats that she filed that show the benefit of legal knowledge that she had access to a legal practitioner to prepare some or all of them. She showed herself capable of obtaining legal advice to defend the possession proceedings on 7 August 2008 before Associate Justice Harrison where the record shows she was represented by a John Samuel Sheedy, solicitor. In the ADT appeal the Tribunal described her as being an acquaintance of Mr Brack, a solicitor representing the fifth defendant. According to the Tribunal's July 2009 decision Mr Brack "authored" the letter for the plaintiff that initiated the Tribunal's sixth decision. Before Rothman J when she applied for a restraining order on the sale of the Bronte property Ms Veloskey of counsel represented her. Not only was she represented by Mr John Austin Chapman, solicitor until shortly before the hearing of these proceedings, Mr Ginges represented her during them. From what I saw of the plaintiff in the witness box she is someone of singular determination who when she set upon a course would be in a position somehow to access legal assistance from time to time, however informally, if that is what she wanted. On the history given she seems to me to have had access to legal advice when she needed it.

Lengthy Delay . The plaintiff's appeals are out of time and for a long period. The appeal in respect of the June 2006 decision is over three years out of time. The appeal in respect of the January 2007 decision was two and a half years out of time. The appeal in respect of the January 2009 decision was over six months out of time. During these extended periods of delay the second and third defendants were taking steps to administer the affairs of the fifth defendant. They did so without notice that the Guardianship orders would be the subject to appeals. It is quite clear from their evidence, which I accept, that they have been heavily involved in administration of the affairs of the fifth defendant since January 2007. The evidence of the second and third defendants, which I accept, is that they were each involved in the planning of the financial and personal needs of the fifth defendant over that period. They have entered into various financial engagements on behalf of the fifth defendant as guardians. The second and third defendants were forced to obtain possession of the Bronte property through proceedings in the Supreme Court and only obtained possession in February 2009. The plaintiff has not begun to explain in these proceedings how she would manage these various financial engagements, if she were to be appointed as guardian, in their place. As I explain below I find that she is quite incapable of such responsible financial management. The second and third defendants in those circumstances should not be put in a position where the earlier Guardianship orders would now be set aside.

Lack of Utility . The plaintiff has not demonstrated to the Court why it is necessary for her to interfere with the earlier Guardianship and financial management orders if she is successful on her appeal against the July 2010 Guardianship orders. It is not clear what justice needs to be done for the plaintiff by having the order commence in June 2006, rather than July 2009, especially weighed against the potential probable prejudice against the second and third defendants of granting such relief.

Accordingly the Court does not allow further time for the plaintiff to bring appeals from the June 2006, January 2007 and January 2009 decisions. As only the July 2009 Tribunal decision is within time it should be remembered that it involves an application to review the guardianship orders not the financial management orders for the fifth defendant. The Court's refusal to extend time means that the existing financial management orders stand.

Leave to Appeal against the July 2009 Decision

The only remaining issue is now whether leave should be granted for the plaintiff to bring the appeal against the July 2009 decision: Guardianship Act s 67(1)(b). This involves analysing the factual material, which the plaintiff advances to justify a grant of leave, to see whether in all the circumstances a grant of leave is warranted. This involves analysing the grounds of appeal and then the evidence that the plaintiff advances to see whether it warrants a grant of leave. It is only being examined for this purpose, as Mr Jeffries said in final submissions almost "on a voir dire", and not by way of a reopening of all the material before the Tribunal. I will deal with each of these sources in turn .

The Grounds of Appeal

The present proceedings are an appeal to the Court and is governed by Uniform Civil Procedure Rules 2005 (" UCPR "), r 50. UCPR , r 50 requires the Summons to contain a statement of the nature of the case, the reasons why leave to appeal should be given and if applicable the reasons why time to apply for leave should be extended. The final form of Summons in the present case did none of these things. The Final Amended Summons which was filed on 6 July 2010 seeking leave to appeal sought relief in the following terms:-

"1. That leave be granted to the Plaintiff to appeal the whole of the decision of the Guardianship Tribunal of New South Wales made at Sydney on 19 th June 2006 as case number 2006/2444, and that the Order made placing [the fifth defendant] under the guardianship of the Second Defendant be dismissed;

2. That leave be granted to the Plaintiff to appeal the whole of the decisions of the Guardianship Tribunal of New South Wales made at Sydney on 9 th January 2007 as cases numbered 2006/3582 and 2006/2445, and that the Orders placing the fifth defendant under the guardianship of the Second and Third Defendants and under the financial management of the Third Defendant be dismissed;

3. That leave be granted to the Plaintiff to appeal the whole of the decision of the Guardianship Tribunal of New South Wales made at Tamworth on 29 th January 2009 as case number 2008/5982. and that Orders made by the Tribunal be dismissed;

4. That leave be granted to the Plaintiff to appeal the whole of the decision of the Guardianship Tribunal of New South Wales made at Sydney on 10 th July 2009 as cases numbered 2008/8213 and 2009/2985, and that the Orders made by the Tribunal be dismissed;

5. That the Plaintiff be appointed the sole guardian of [the fifth defendant];

6. That the Plaintiff be appointed the sole financial manager of [the fifth defendant];

7. Costs."

The difficulty with the form of pleadings presented to the Court was that they were so imprecise that the defendants were required to speculate as to the case they had to meet. Counsel for the fifth defendant described the plaintiff's pleadings as "ambiguous and unintelligible". There is much to be said for this description. But the problem confronting the Court was that in a part heard case, even after the opportunity to amend and provide some grounds had been afforded, this was the state of the pleadings the plaintiff presented. This failure to provide adequate grounds presented the Court with a significant problem as to how to do justice. The defendants' complaints about the quality of the Final Amended Summons were justified. On the other hand, the plaintiff had been unrepresented for a period, due to what she claimed were difficulties in affording legal representation. By the time the matter came for hearing the parties had both filed extensive affidavit evidence. On a number of occasions upon resumption of the hearing the Court asked Mr Ginges to identify his grounds of appeal. He did not do this, right up until the end of final submissions. Whether this was due to lack of proper instructions or some other reason it is not clear. In the course of final submissions Mr Ginges indicated that the plaintiff's short written opening submission set out his case on appeal, slightly supplemented by what was said orally in closing. But that written document was inadequate for the purpose of serving as a set of grounds of appeal. But it was the only definition to her case that the plaintiff could give in the proceedings.

This was an unusual situation. The evidence presented had all the hallmarks of evidence that, were it not examined now by the Court, would simply result in further litigation. All parties had invested considerable resources in filing current evidence and getting the proceedings to this point. It was theoretically possible to dismiss the proceedings on the basis that the material advanced was so badly organised that the proceedings should be dismissed. Indeed the defendants invited the Court to do this. In my view though the most just course to all parties was at least to to examine the material presented, and to do the best with the inadequate grounds of appeal that had been provided, and to determine the questions of leave.

In this difficult course the Court was much assisted by the quality of the submissions presented by Mr Jeffries of counsel on behalf of the second and third defendants and Mr Roberts of counsel on behalf of the fifth defendant. The practical course that they took was to examine the plaintiff's (and the defendants') evidentiary material and to craft, as they saw it, the grounds of appeal that might arise from this material and then to seek to answer them. That course gave great assistance to the Court and indeed to the plaintiff. In the next section of these reasons, covering the new evidence , these reasons use material and a structure that both sides have advanced. Mr Ginges on behalf of the plaintiff had an opportunity to examine and respond to the defendants' submissions at the end of the hearing.

First though it is useful to look at the plaintiff's own written opening submissions so that the Court's difficulty can be seen. It provides the only structure that the plaintiff put into her case. The plaintiff's short opening submissions are set out below:-

"1. The Plaintiff seeks relief from the Court against determinations made by the Guardianship Tribunal on 19 th June 2006, 9 th January 2007, 29 th January 2009 and 10 th July 2009 the effect of which is that [the fifth defendant], the mother of the Plaintiff and the second and third Defendants, has been placed under the guardianship of the second and third Defendants and the financial management of the second Defendant.

2. The Plaintiff also seeks Orders from the Court appointing her the guardian and the financial manager of [the fifth defendant].

3. The Plaintiff claims that the Court has the power to grant her leave to make her applications out of time and to grant her the relief she seeks.

Defects in the Orders of the Guardianship Tribunal

4. In respect of the Order made on 19 th June 2006 appointing the third Defendant as the guardian of [the fifth defendant] the Plaintiff says that she was given insufficient notice of the hearing, and that the Tribunal took no account of the existing appointment of herself as [the fifth defendant's] guardian.

5. In respect of the Orders made on 9 th January 2007 appointing the second and third defendants as the guardians of [the fifth defendant] and appointing the financial manager of [the fifth defendant] the Plaintiff says that she again was given insufficient notice of the hearing, and that the Tribunal exercised insufficient care in assessing the truth or otherwise of the allegations made by the applicants in those proceedings against the Plaintiff in her capacity as [the fifth defendant's] guardian and financial manager.

6. The Plaintiff argues that all subsequent determinations by the Guardianship Tribunal have arisen from the initial failure by the Tribunal to investigate the circumstances in which the applications to it were being made, the respective roles the Plaintiff and the second and third Defendants had played in the care of [the fifth defendant] to that time and the likely effect the Orders it was being urged to make would have upon [the fifth defendant's] future circumstances and well-being.

[The fifth defendant's] circumstances prior to and upon the making of the Tribunal's Orders

7. Prior to the making of the initial Tribunal Orders on 19 th June 2006 [the fifth defendant] had lived continuously in her home at Bronte for about 50 years. At that time the Plaintiff lived in the home with [the fifth defendant], and cared for [the fifth defendant] on a full-time basis. The second and third Defendants did little or nothing to assist the Plaintiff in the care of [the fifth defendant], and provided no financial support either for the care of [the fifth defendant] or for the maintenance of her home. The third Defendant did nothing to assist the Plaintiff in caring for [the fifth defendant] or to improve [the fifth defendant's] circumstances upon his appointment as her guardian.

8. Upon the making of the Orders on 9 th January 2007 appointing the second and third Defendants jointly as guardians for [the fifth defendant], the second Defendant arranged for the placement of [the fifth defendant] in long-term residential care at Amity, a nursing home in Sydney. The Plaintiff continued to spend each day with [the fifth defendant]. The second Defendant lived in Tamworth, and the third Defendant moved to Queensland. Neither the second nor the third Defendant spent any significant time with [the fifth defendant]. The second Defendant, as [the fifth defendant's] financial manager, did not provide any assistance to the Plaintiff in assisting [the fifth defendant] with her daily care. The second and third Defendants did nothing to improve the condition of [the fifth defendant's] home or provide any opportunity for [the fifth defendant] to return to live in her home or even to visit it.

[The fifth defendant's] present circumstances

9. Following an occasion in September 2008 when the Plaintiff failed to return [the fifth defendant] to Amity at the agreed time, the second and third Defendants arranged for the transfer of [the fifth defendant] from Sydney to a nursing home in Tamworth, where she continues to reside. As a consequence [the fifth defendant] has been deprived of frequent contact with the Plaintiff, who continues to be willing to care for [the fifth defendant] on a full-time basis. The Plaintiff argues that [the fifth defendant] is not being provided with anything more than her basic physical needs.

The Plaintiff's capacity to care for [the fifth defendant]

10. The Plaintiff argues that she is in a position to resume looking after [the fifth defendant] in [the fifth defendant's] home at Bronte. The Plaintiff argues that [the fifth defendant] is well enough to be cared for at home, and that the Plaintiff has the capacity to care for her. The Plaintiff argues that costs to repair the home are sufficiently less than the costs being expended in having [the fifth defendant] cared for in a nursing home and the costs wasted by the second and third defendants in resisting the Plaintiff's applications to resume the care their mother.

11. Even if [the fifth defendant] did not return to live at home, but returned to a nursing facility in Sydney, the Plaintiff is in a position to spend the larger part of each day with [the fifth defendant] and to provide significantly greater care for [the fifth defendant] than [the fifth defendant] now receives at the facility in Tamworth.

Effect of the Plaintiff's applications

12. If the Plaintiff is successful in her applications and resumes the role of [the fifth defendant's] guardian the Plaintiff would provide full-time care for [the fifth defendant] either in the family home at Bronte or in a nursing facility convenient for the Plaintiff to visit on a daily basis.

13. If the Plaintiff is appointed as [the fifth defendant's] financial manager and it is feasible for [the fifth defendant] to live at home the Plaintiff would seek a reverse mortgage over [the fifth defendant's] home so that the home can be returned to a fit condition for [the fifth defendant] and the Plaintiff to live in it."

Before going to the evidentiary material advanced by the plaintiff it is useful to briefly treat these submissions as articulating the plaintiff's the grounds of appeal and analyse them. The Court now does this by reference to each of the main headings in those submissions:-

(a) Defects in the Orders of the Guardianship Tribunal;

(b) The fifth defendant's circumstances prior to and upon the making of the Tribunal's Orders;

(c) The fifth defendant's present circumstances;

(d) The plaintiff's capacity to care for the fifth defendant;

(e) The effect of the plaintiff's applications.

For the reasons that follow none of these grounds in my view has any substance.

Defects in Tribunal Orders . The plaintiff says that she was given insufficient notice of the hearing for the June 2006 decision and that the Tribunal took no account of her existing appointment as the fifth defendant's guardian. The plaintiff was present at the June 2006 hearing. There is no internal evidence that she complained about being given insufficient notice of that hearing. Her own evidence in these proceedings does not justify the conclusion that she had insufficient notice of the hearing. The Tribunal's reasons for decision show that the Tribunal listened to her case at some length, and examined her evidence thoroughly, which tends to suggest she was given sufficient notice of the hearing to prepare. Moreover the Tribunal referred to the plaintiff as the fifth defendant's guardian as she was to that point. The Tribunal cannot have ignored this state of affairs.

The plaintiff's complaints about the January 2007 hearing have similar difficulties. She appeared at the hearing, although she was late due to a dental appointment. There is no evidence that she complained about insufficient notice of this hearing. To the contrary of the plaintiff's suggestion that the Tribunal "exercised insufficient care in assessing the truth or otherwise of the allegations made" against the plaintiff, an objective reading of the Tribunal's reasons show that it proceeded with great care about all those allegations.

There is no basis to believe that the Tribunal's subsequent determinations arise from "the initial failure by the Tribunal to investigate that the matters alleged in paragraph 6 of the plaintiff's submission". This kind of general allegation against the quality Tribunal's reasoning is wholly inadequate to identify any error on the Tribunal's part. Stated in general terms, each of the Tribunal's decisions show considerable care and attention to detail in relation to relevant issues.

The Fifth Defendant's Prior Circumstances . The fifth defendant's circumstances prior in time to the making of the Tribunal orders cannot be the subject of fresh evidence on appeal unless that evidence satisfies the test for the admission of fresh evidence on appeal. At one stage in final submissions Mr Ginges argued that the Court could look at such evidence as if the matter were a complete rehearing from the beginning of the matters before the Tribunal. But this argument does not give adequate recognition to the requirement for the plaintiff to secure a grant of leave under Guardianship Act s67 (1). The plaintiff's submissions attempt to re-canvass issues of fact about the second and third defendants' care and management of the fifth defendant, mostly before the time of the July 2009 decision. These are purely matters of fact that are reworking material that the plaintiff has not established was not available at the time of the Tribunal's July 2009 decision.

The Fifth Defendant's Present Circumstances. In my view, given the course that the Court has taken it is appropriate briefly to examine the evidence about the fifth defendant's present circumstances. That is done below. None of it is a basis to disturb the Tribunal's findings in the July 2009 decision.

Plaintiff's Capacity to Care for Fifth Defendant . It is appropriate to examine the recent evidence in relation to the plaintiff's capacity to care for the fifth defendant. That is done below but none of it is a basis to disturb the Tribunal's findings in the July 2009 decision.

Effect of the Plaintiff's Applications. It is appropriate to examine what would happen if the plaintiff were to be made the fifth defendant's guardian, because the plaintiff has presented current evidence as to her capacity. That is dealt with below. For the reasons appearing below none of this material is a basis to disturb the Tribunal's findings in the July 2009 decision.

The Tribunal's July 2009 Decision

Nor has the plaintiff pointed to any procedural problem or defect in reasoning in the Tribunal's July 2009 decision. Courts commonly examine procedural defects and the Tribunal's reasoning in hearings of this character: C v C [2001] QSC 126 and K v K [2000] NSWSC 1052.

There was no obvious procedural defect in the Tribunal's conduct of the proceedings before it, leading to the July 2009 decision. The plaintiff was represented by Ms J. Veloskey of counsel. Leave was given to the second and third defendants for them to be legally represented at the hearing. It is not obvious in any submission put to the Court on behalf of the plaintiff or in the text of the July 2009 decision that there was any procedural fairness problem identified by any of these legal representatives. There is none apparent on the face of the Tribunal's reasons. Indeed the Tribunal proceeded with considerable procedural caution. It did not determine the plaintiff's adjournment application until it considered all the evidence. It allowed the second and third defendants to be legally represented because the plaintiff was. It declined to accede to the second and third defendant's application to dismiss the plaintiff's application on the basis that it was "frivolous and vexatious". The Tribunal took account of the late service of some documents upon counsel for the plaintiff. The Tribunal allowed the parties to conciliate a problem as to whether the plaintiff's real application in the July 2009 hearing was a letter from a solicitor, Mr Bracks, or whether it was "application number 2 (2009/2985)". As a result of that conciliation all parties agreed, including the plaintiff, that that letter from Mr Bracks could be disregarded.

Indeed the Tribunal managed quite flexibly a degree of ground shifting by the plaintiff in the conduct of the July 2009 hearing. Through Ms Veloskey for the plaintiff initially took the position that the fifth defendant was not in need of a guardian and that the request that the plaintiff be substituted for the second and third defendants as guardian was only an application in the alternative. Half way through the day the plaintiff changed position and did not contest the fifth defendant's need for a guardian. However by final submissions at the end of the day the plaintiff once again sought revocation of the guardianship order then in place. The Tribunal carefully recorded all of these various changes of position. The Tribunal then noted that it had questioned the plaintiff on more than one occasion as "to her own personal views as to her mother's capacity to make major decisions". This did not reveal much to the Tribunal, which concluded "the Tribunal was unable to ascertain a clear response from the applicant on this point".

The Tribunal's difficulty at that time reflected a constant problem in the plaintiff's evidence before me of trying to ascertain with clarity what were her real plans and intentions for the future in relation to the fifth defendant. I ultimately formed the view that regrettably I could not rely upon anything that she said about those plans.

Nor is there any obvious error in the Tribunal's reasoning in its July 2009 decision. It addressed the correct ultimate questions before it of whether it should revoke the guardianship order and if so whether it should substitute the plaintiff for the second and third defendants. Its reasoning to those conclusions is compelling.

The Tribunal declined to revoke the guardianship order because no evidence was put to the Tribunal to suggest that the fifth defendant was no longer "a person in need of a guardian", Guardianship Act , s 3(1). The Tribunal spoke to Dr Christopher Fay, the fifth defendant's general practitioner, by telephone, to the fifth defendant herself and to Ms Louise Olliphant the care manager at the Amity Nursing Home at Tamworth. That evidence together with existing medical reports were in my view a sufficient basis for the Tribunal to conclude that the fifth defendant was "a person in need of a guardian", as she was a person who because of a disability is totally or partially incapable of managing her person.

One of the reasons this Court granted an adjournment of the hearing on 22 June 2010 was to allow the plaintiff to have the fifth defendant examined by a geriatrician. When the case first came before me in June 2010 the possibility existed that if that examination had shown that the fifth defendant was no longer "a person in need of a guardian", that the plaintiff could have relied upon that medical evidence before me to argue that since July 2009 the circumstances had so changed that the matter could be dealt with on appeal under Guardianship Act , s 67. But the plaintiff did not have the fifth defendant examined. She ultimately tendered no current specialist medical evidence from a geriatrician. The absence of such evidence, especially where an opportunity to obtain it had been afforded to the plaintiff, was in my view an important reason why the Court should not grant leave to re-examine the question of whether the plaintiff was in need of guardianship.

This then leads to an examination of the other new evidence to see whether it warrants a grant of leave to appeal under Guardianship Act , s 67(1)(b). This new evidence was in three categories; new evidence about the fifth defendant, about the second and third defendants and about the plaintiff.

The Fresh Evidence

It is now appropriate to briefly evaluate the evidence that the plaintiff advances to see if it provides any basis for a grant of leave to bring the appeal. The first question is to see to what extent it can even be examined.

The defendants argued that the Court should not consider the evidence that the plaintiff was advancing at this hearing on the basis that "special grounds" were not shown for the reception of that evidence: Supreme Court Act 1970, ss 75A(7) and 75A (8). The present appeal to this Court is one, to which Supreme Court Act 1970, s 75A applies. Supreme Court Act 1970, s 75A(7) empowers the Court to receive further evidence on such an appeal. But because the four Tribunal decisions appealed from occurred after "a trial or hearing on the merits" the statutory command to the Court is not to "receive further evidence except on special grounds": Supreme Court Act 1970, s 75A(8). To make out special grounds the plaintiff must prove that the evidence was unavailable before the original hearing, is credible and is relevant: Atkins v National Australia Bank (1994) 34 NSWLR 155, at 160.

The third and fourth defendants contend that the plaintiff has not established the historical unavailability or the credibility or the relevance of the material now advanced. There is much merit in what the second and third defendants say about this aspect of the plaintiff's evidence. Much of it is a simple re-statement of evidence before the Tribunal. This can readily be inferred from the date and the subject matter of the evidence advanced and the reasons for the decision of the Tribunal. Much of the plaintiff's evidence concerns events that took place before the Tribunal's last decision in July 2009 without any explanation as to why it was not adduced before the Tribunal in July 2009. Some of the evidence was indeed adduced before the Tribunal. Before one gets to the issues of credibility and relevance of this new material, the plaintiff must establish that it either came into existence after 10 July 2009 or that though existing before that date it could not by reasonable diligence have been discovered by the plaintiff. The plaintiff did not attempt to show that the evidence that apparently dated before 10 July 2009 was not obtainable before that date. In my view I can disregard that earlier evidence on this ground alone. But the plaintiff did adduce some evidence that purported to have been created after 10 July 2009. This evidence must be examined and it is below.

Evidence created after 10 July 2010

The second and third defendants initially submitted that the plaintiff's appeal could be determined without hearing the plaintiff's recent evidence. In the course of final argument they accepted that the Court must at least examine the material to determine whether or not it was capable of being taken in on appeal. The material needs to be looked at and cannot be rejected simply in bulk. This leaves the Court to the examination of the recent material that the plaintiff finally advanced.

New Evidence about the Fifth Defendant

There was ample evidence before me after July 2009 making clear that there was no medical basis to conclude that the fifth defendant's condition had improved since July 2009. The consulting psychiatrist, Dr Sid Williams, found her to be physically and psychologically impaired and "...she displayed major difficulties when discussing her physical limitations, the amount of care she needs, her ongoing wish to move back to the care of her daughter [the plaintiff], her experience when living at her home in her daughter's care and the reasons for the decisions which led to her being at residential care".

The post July 2009 evidence of the fifth defendant's physical disabilities gives no basis to conclude that there has been any improvement in her condition sufficient to warrant the Court granting leave. Dr Peter Harradine, the Director of Rehabilitation and Aged Care Services at Tamworth, in a report dated 4 February 2010 indicated the fifth defendant suffered severe rheumatoid arthritis with marked rheumatoid deformities in her hands, wrists, feet, ankles and knees, is wheelchair bound, needs the assistance of a pelican belt for moving, requires assistance with her daily living, including showering and dressing, is only mobile with the assistance of one or two persons, suffers poor vision and needs help with her toileting and grooming. In October 2009 Dr Fay was of the view that the fifth defendant requires "intensive nursing care 24 hours and needs complete assistance with all activities of daily living".

The Tribunal in the hearing before it and this Court in considering giving leave to appeal is required to have regard to the fifth defendant's views as well as the views of other persons: Guardianship Act , s 14. The fifth defendant's tutor, Mr McHugh, has reproduced the fifth defendant's views for the Court succinctly "...[the fifth defendant] would like the Court to know that she wishes to live independently in the Bronte home with her daughter [the plaintiff]". There is no doubt about the fifth defendant's expressed preference to live with her daughter at the Bronte property. Her views are of very considerable weight. They are an important basis for the plaintiff's case. However the fifth defendant expressed similar views to the Tribunal in many of its hearings and the Tribunal took them into account. On this matter nothing has changed. I see nothing here which would provide a basis for the Court to grant leave under Guardianship Act , s 67(1)(b).

One other matter does emerge from the fifth defendant's expression of her wishes. The Court had the benefit of a detailed transcript of an interview between Mr Roberts, counsel for the fifth defendant, the fifth defendant and her tutor Mr McHugh dated 29 March 2010. The impression to be gained from this document is that the fifth defendant is appropriately responsive to the questions asked of her. But this document does show that the fifth defendant misses the plaintiff. It is a theme to which the fifth defendant naturally came in the interview a number of times. It seems to me that that part of the fifth defendant's welfare appears to be fostered by her continued contact with the plaintiff. There is no basis to disturb the second and third defendant's guardianship, which has resulted in the fifth defendant's placement in the Amity Nursing Home in Tamworth. Speeding up the sale of the Bronte home and providing cash from that resource will provide a liquid fund for the fifth defendant's welfare. But by way of observation at this stage, rather than any formal direction, I should say that the second and third defendants may well give consideration to the expenditure of some of that fund in the fifth defendant's best interests, in ensuring that the plaintiff is able to see the fifth defendant in Tamworth on a regular basis.

The Second and Third Defendants - Recent Evidence

In the July 2009 decision the Tribunal concluded that it was "not satisfied that there were any grounds to remove [the fifth defendant's] current guardians, her sons". At the July 2009 hearing the plaintiff's case about the unfitness of the present guardians was really directed at the second plaintiff. As to his actions the Tribunal concluded "such actions cannot be found by the Tribunal to be the actions of a person unsuitable to act in the role of guardian as suggested by the applicant".

The Tribunal found in the July 2009 decision that "the current guardians were acting appropriately". The Tribunal dismissed the plaintiff's complaint that the fifth defendant's accommodation in a nursing home in Tamworth was a poor decision. In my view nothing has changed about this.

To examine whether there is anything to warrant a grant of leave I have had the opportunity of seeing the second and third defendants give evidence and be cross-examined. Nothing in the evidence before me suggests any cause for concern about the discharge of their duties as the fifth defendant's guardians since July 2009, warranting a grant of leave by the Court to consider replacing them as guardians. They appear to the Court to be sons and brothers who are keenly anxious to do all they could in difficult circumstances to promote the welfare of their mother, the fifth defendant. They are suitable guardians. I accept all of the second and third defendant's evidence about the frequency of their visits to their mother and the quality of their care to her. Their evidence was wholly reliable. I have no reason to doubt any of it. The third defendant and his family see the fifth defendant daily and sometimes more often.

The Plaintiff - Recent Evidence

There was nothing in the plaintiff's evidence before me that gave the Court any basis to infer that it should give leave to appeal to interfere in the Tribunal's findings about the plaintiff. The Tribunal's findings about the plaintiff are well justified. If anything they are something of an understatement of her incapacity to act as her mother's guardian. In my view the plaintiff is wholly unfit to be appointed as her mother's guardian. There was no part of her evidence upon which I could rely. She appeared dominated by her own obsessions about returning her mother to the Bronte property and living together with her mother there. She was incapable of seeing any view other than her own, as found by the Tribunal on this issue in its several decisions. She had no insight into the deficiencies of her prior care for the fifth defendant at Bronte. Some particular examples of this are useful.

First, the Tribunal found in its July 2009 decision that the plaintiff "exhibits a lack of insight into the current physical and medical needs of her mother". Her continuing lack of insight was perfectly evident before me.

Secondly, the Tribunal's January 2007 decision found that the plaintiff had refused reasonable offers of assistance from service providers at the Bronte property or to take steps to ensure that the fifth defendant's health was properly preserved. One of the Tribunal's reasons for appointing the second and third defendant's as guardians was because of these failures. Nothing in the plaintiff's evidence before me indicated that she was likely in the future to accept reasonable offers of assistance from service providers to clean the house or look after the fifth defendant, were the fifth defendant to come back to the Bronte property with the plaintiff appointed as her guardian. She seemed more intent on demonstrating that she had not refused access to carers in the past than to recognise that it was in the fifth defendant's best interests that she should allow them access in the future, were the fifth defendant to go back to the Bronte property. I have no confidence that the plaintiff demonstrates any insight that it is in the fifth defendant's interests for carers and ancillary staff to have admittance to the Bronte property. For example, she seemed quite unready to accept the Tribunal's findings as to the squalid nature of the Bronte property, when she was declining such ancillary assistance for the fifth defendant. Nothing in her evidence gives the Court any basis to grant leave to appeal because of changed or other circumstances.

Thirdly, although the July 2009 decision does not deal with the question of financial management orders, the plaintiff's continued attitude to financial management of the fifth defendant's estate is an important indicator of the continuing wisdom of the Tribunal's decision not to allow her to be the fifth defendant's guardian. The Tribunal appointed the second defendant, the fifth defendant's financial manager, because the plaintiff was incapable of showing at the January 2007 hearing that she had separated her own and the fifth defendant's finances from one another. The case before the Court was remarkable for failing to demonstrate how she had any plans for administering the fifth defendant's affairs as her guardian objectively and without conflict of interest. A concrete way of doing this would have been to show how the plaintiff had insight into her financial management deficiencies in the past. The absence of any evidence of this sort only confirmed that there was no basis for the Court to grant leave to appeal.

Fourthly, the evidence about the plaintiff's own health is another reason why the Court should not grant leave. The evidence is that she has had cardiac surgery and has had three mitral valve replacements and was admitted to hospital in August of 2010 for related treatment. She was in receipt of a disability pension but has failed to provide any documents showing the basis on which that pension was granted. An applicant for a disability pension must not be able to work more than 15 hours per week to qualify for this benefit. But the plaintiff says she is fit and able to care for her mother 24 hours a day, seven days a week. This contradiction was left unresolved in the plaintiff's case. The plaintiff also claims to have suffered carpal tunnel syndrome, so that she needed to purchase methadone to relieve her pain. The plaintiff has not received any treatment for this condition. From her oral evidence the Court had no confidence the plaintiff was physically capable of looking after the fifth defendant. Nothing in her oral evidence provides a basis for the Court to give leave to review the Tribunal's findings that the plaintiff should not be the guardian of the fifth defendant.

Conclusions and Orders

In the result therefore the Court concludes that the plaintiff's applications for leave to appeal against three decisions of the Guardianship Tribunal made on 19 June 2006, 9 January 2007, and 29 January 2009 were not instituted within time under Guardianship Act s 67(2)(b). Further time will not be allowed under Guardianship Act s 67(2)(c).

The Court further concludes that the application for leave to appeal against a further decision of the Guardianship Tribunal dated 10 July 2009 is within time. But leave to appeal against the Tribunal's July 2009 decision is necessary, as the application does not involve a question of law. Leave to appeal against this decision is refused.

Order the plaintiff to pay the defendants' costs of these proceedings.

This decision means that the second and third defendants may wish to apply for orders for the sale of the Bronte property or pending sale to arrange a further mortgage refinancing. I will grant liberty to apply so that the parties can approach the Court to deal with these and any other consequential matters.

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Amendments

21 April 2011 - The word "plaintifff" replaced with "fifth defendant".

Amended paragraphs: 6

Decision last updated: 21 April 2011

Medium Neutral Citation:	P v D1 & Ors [2011] NSWSC 257
Hearing dates:	22 June, 14, 15, 16, 22 & 23 September 2010
Decision date:	04 April 2011
Before:	Slattery J
Decision:	The plaintiff's application for leave to appeal against three decisions of the Guardianship Tribunal made on 19 June 2006, 9 January 2007, and 29 January 2009 was not instituted within time under Guardianship Act s 67(2)(b). Further time will not be allowed under Guardianship Act s 67(2)(c). The application for leave to appeal against a fourth decision of the Guardianship Tribunal dated July 2009 is within time. But leave to appeal is necessary, as the application does not involve a question of law. Leave to appeal is refused. Plaintiff ordered to pay defendants' costs.
Catchwords:	MENTAL HEALTH - guardians- applications for leave to appeal against four decisions of the Guardianship Tribunal - application brought under Guardianship Act 1987 s67 - HELD - applications out of time in respect of three Guardianship Tribunal decisions - no basis to exercise discretion allowing further time for leave to appeal in respect of these three decisions - none of the appeals for which the plaintiff seeks leave involve a question of law under Guardianship Act s 67(1)(a) - no grant of leave to appeal in respect of the fourth Tribunal decision.
Legislation Cited:	Guardianship Act 1987, ss 3(2), 25P, 31, 57, 67(1), 67(2) Supreme Court Act 1970, s 75A Uniform Civil Procedure Rules 2005, r 50.
Cases Cited:	Akins v National Australia Bank (1994) 34 NSWLR 155 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 C v C [2001] QSC 126 IZ V JC, JB and JA [2009] NSWADT AP 4 K v K [2000] NSWSC 1052 Re R [2000] NSWSC 886 Retarded Children's Aid Society v Day [1978] ICR 437 The Australian Gaslight Co v The Valuer-General (1940) 40 SR (NSW) 126
Category:	Principal judgment
Parties:	Plaintiff [Not published] First Defendant [Not published] Second Defendant [Not published] Third Defendant [Not published] Fourth Defendant - Guardianship Tribunal Fifth Defendant [Not published]
Representation:	Counsel: Plaintiff - n/a Second and Third Defendants - P. Jeffriess Fifth Defendant - D.M.Roberts Counsel: Plaintiff - Hal Ginges, Hal Ginges and Company Second and Third Defendants - John McCallum Boyd Boag, Everingham Solomons Fifth Defendant - Michael McHugh, The Law Company
File Number(s):	2009/46