Peter Allan Gray v Guardianship & Management of Property Tribunal and the Community Advocate

[2005] ACTCA 30

PETER ALLAN GRAY v GUARDIANSHIP & MANAGEMENT OF PROPERTY TRIBUNAL and THE COMMUNITY ADVOCATE [2005] ACTCA 30 (2 August 2005)

EX TEMPORE JUDGMENT

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 40 - 2004
No. SCA 11 of 2004

Judges:        Crispin P, Connolly and Moore JJ
Court of Appeal of the Australian Capital Territory
Date:           2 August 2005

IN THE SUPREME COURT OF THE     )          No. ACTCA 40 - 2004
  )          No. SCA 11 of 2004
AUSTRALIAN CAPITAL TERRITORY )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:PETER ALLAN GRAY

Appellant

AND:GUARDIANSHIP & MANAGEMENT OF PROPERTY TRIBUNAL

First respondent

THE COMMUNITY ADVOCATE

Second respondent

ORDER

Judges:  Crispin P, Connolly and Moore JJ
Date:  2 August 2005
Place:  Canberra

THE COURT ORDERS THAT:

1. the oral application for leave to appeal will be refused;

2. the appeal be dismissed; and

3. the appellant pay the costs of the respondents. 

IN THE SUPREME COURT OF THE     )          No. ACTCA 40 - 2004

)          No. SCA 11 of 2004
AUSTRALIAN CAPITAL TERRITORY )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:PETER ALLAN GRAY

Appellant

AND:GUARDIANSHIP & MANAGEMENT OF PROPERTY TRIBUNAL

First respondent

AND:THE COMMUNITY ADVOCATE

Second respondent

Judges:  Crispin P, Connolly and Moore JJ
Date:  2 August 2005
Place:  Canberra

REASONS FOR JUDGMENT

CRISPIN P:

1. This matter commenced as an appeal against the decision of Gray J, dismissing on various grounds an appeal from the Guardianship & Management of Property Tribunal. 

1. It is, I think, necessary to explain that there were two different applications before the Tribunal.  An application was made to the Tribunal on 26 August 2003 by Mr Brian Corley of Community Options ACT, seeking an order that the Community Advocate be appointed as the guardian of Ms Burt, a person said to have an intellectual impairment and other physical and mental issues warranting guardianship.  On the following day, the appellant filed an application seeking appointment as Ms Burt’s guardian.  The proceedings were not consolidated and were not heard together.

1. The application by Mr Corley was heard on 22 September 2003.  In a subsequent statement of reasons dated 30 July 2004, a deputy president of the Tribunal stated that the transcript of the proceedings on that day had revealed that at no stage did the appellant or his legal representative apply either orally or in writing for leave to appear or to give evidence at the hearing held on that day.  As a result of those proceedings the Community Advocate was appointed guardian. 

1. On 8 December 2003, the appellant’s application to be appointed as Ms Burt’s guardian was heard and dismissed by the Tribunal.  The statement of reasons reveals that his application failed substantially because there had been an existing domestic violence order which would have prevented Mr Gray from having any substantial contact with Ms Burt, who was of course, to be his intended ward.

1. The notice of appeal with which we are presently concerned has only one ground, namely, that his Honour erred in finding that the appeal was incompetent.  It is clear that the only aspect of the appeal which his Honour held to be incompetent was the question of whether the appellant was entitled to appeal, not from the decision on 8 December 2003 dismissing his application to be appointed as Ms Burt’s guardian, but rather from the decision of 23 September 2003 appointing the Community Advocate as her guardian.

1. During the course of the proceedings before us, the issue was raised as to whether the decision to dismiss that portion of the appeal before his Honour on the ground of incompetency had been interlocutory or final in character and, Ms Keys, who appeared for the appellant, ultimately conceded that it had been interlocutory and that she would need leave to pursue the present appeal. 

1. It should be noted that no formal application to that effect has been made and there is no affidavit to support such an application.

1. There are, however, more fundamental problems in the appellant’s path. 

1. First, the appellant had not been a party to the proceedings before the Tribunal on 22 September 2003, and it is difficult to see how he could have permitted the challenge to the decision made on that occasion in the subsequent proceedings before Gray J. 

1. Ms Keys sought to overcome that problem by relying upon s 56 of the Guardianship & Management of Property Act 1991 (ACT) (“the Act”), which provides that an appeal to the Supreme Court from an order, direction or decision of the Tribunal made by a person who satisfies the description in the following subparagraphs, subparagraph 2 of which reads; “who, with the leave of the tribunal, would have been entitled to appear before the tribunal in the relevant inquiry”.  As Ms Keys has pointed out, s 36 of the Act confers an apparently unfettered discretion of the Tribunal to grant leave to other people, that is, people other than those specified in s 35 to appear and give evidence at an inquiry.  Accordingly, she submits that anyone in the world could challenge such a decision on appeal, since anyone in the world is or would be a person who, with the leave of the Tribunal, would have been entitled to appear.

1. I am quite unable to accept that construction.  It seems to me that the right of appeal was clearly intended to be conferred upon people who had in fact been granted leave to appear at the Tribunal and, perhaps, also upon people seeking to appeal against a decision to deny them leave to appear, if such an application had been made to the Tribunal, though the last point is entirely moot because, as I have indicated, no such application was ever made.

1. Second, Ms Keys made it clear that her client did not wish to challenge the original order appointing the Community Advocate as Ms Burt’s guardian.  That is entirely understandable as events have now overtaken that appointment and Ms Burt’s parents have now been declared to be her guardians in the Community Advocate’s stead.  Nonetheless, it would obviously be futile to grant leave to appeal when the appellant does not wish to challenge the order appealed from.

1. As Connolly J pointed out during the course of argument in the current hearing, the real grievance that the appellant seemed to raise was his contention that Ms Burt did not have an intellectual impairment of sufficient gravity to warrant guardianship.  That is not an issue that could be raised on the present appeal even if leave were to be granted.  Furthermore, as Connolly J again pointed out, s 19 of the Act authorises the Tribunal to at any time, whether on application or on its own notion, hold an inquiry into various matters including whether an order appointing a guardian should be revoked on the ground that the need for guardianship no longer exists.  Whether or not the appellant would have standing to litigate that matter before the Tribunal is not a matter with which we are presently concerned. 

1. For present purposes the only relevant question is whether the appellant should be granted leave to appeal against a decision which he does not wish to challenge, was made in proceedings to which he was not a party and did not directly affect his rights.  It seems to me that a grant of leave in this case would be entirely futile.  I would refuse to grant leave and I would dismiss the present appeal as incompetent.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, President Crispin.

Associate:
Date:    11 August 2005

IN THE SUPREME COURT OF THE     )          No. ACTCA 40 - 2004

)          No. SCA 11 of 2004
AUSTRALIAN CAPITAL TERRITORY )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:PETER ALLAN GRAY

Appellant

AND:GUARDIANSHIP & MANAGEMENT OF PROPERTY TRIBUNAL

First respondent

AND:THE COMMUNITY ADVOCATE

Second respondent

Judges:  Crispin P, Connolly and Moore JJ
Date:  2 August 2005
Place:  Canberra

REASONS FOR JUDGMENT

CONNOLLY J:

1. I would join in the orders made by the President and express my agreement with the reasons given by the President.

I certify that the preceding paragraph numbered fifteen (15) is a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date:    11 August 2005

IN THE SUPREME COURT OF THE     )          No. ACTCA 40 - 2004

)          No. SCA 11 of 2004
AUSTRALIAN CAPITAL TERRITORY )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:PETER ALLAN GRAY

Appellant

AND:GUARDIANSHIP & MANAGEMENT OF PROPERTY TRIBUNAL

First respondent

AND:THE COMMUNITY ADVOCATE

Second respondent

Judges:  Crispin P, Connolly and Moore JJ
Date:  2 August 2005
Place:  Canberra

REASONS FOR JUDGMENT

MOORE J:

1. I would also join in the orders proposed by the President.  I would not, however, wish to be taken to express a view about the scope of section 56 of the Guardianship & Management of Property Act 1991 nor express a view about whether the way in which the Tribunal dealt with the various applications before it was or was not open under the Act.  It appears to me, as the President has pointed out, that this application for leave to appeal, and it is conceded by counsel that leave is necessary, seeks to raise by way of appeal an issue which is moot and I would for that reason refuse leave and dismiss the appeal as incompetent.

I certify that the preceding paragraph numbered sixteen (16) is a true copy of the Reasons for Judgment herein of his Honour, Justice Moore.

Associate:

Date:    11 August 2005

Counsel for the Appellant:  Ms J Keys

Solicitor for the Appellant:  Self

Counsel for the First respondent:                  Submitting appearance

Solicitor for the First respondent:                  ACT Government Solicitor

Counsel for the Second respondent:              Mr K Archer

Solicitor for the Second respondent:             ACT Government Solicitor

Date of hearing:  2 August 2005

Date of judgment:  2 August 2005