PS v Public Guardian

[2005] NSWADTAP 23

Appeal Panel - External

CITATION:	PS v Public Guardian and ors [2005] NSWADTAP 23
PARTIES:	APPELLANT PS FIRST RESPONDENT Public Guardian SECOND RESPONDENT Protective Commissioner THIRD RESPONDENT Lynda Pattie FOURTH RESPONDENT PT DECISION MAKER Guardianship Tribunal
FILE NUMBER:	058006
HEARING DATES:	06/05/2005
SUBMISSIONS CLOSED:	05/06/2005
DATE OF DECISION:	05/27/2005
DECISION UNDER APPEAL:	Guardianship Tribunal C/30311
BEFORE:	Hennessy N - Magistrate (Deputy President); Leal S - Judicial Member; Wunsch A - Non Judical Member
CATCHWORDS:	Financial management order - making - Guardianship order - making - Leave to appeal on other grounds - Procedural fairness
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	C/30311 Matter 2004/6669, 2004/6670
DATE OF DECISION UNDER APPEAL:	03/02/2005
LEGISLATION CITED:	Guardianship Act 1987
CASES CITED:	K v K [2000] NSWSC 1052 Kioa v West (1985) 159 CLR 550
REPRESENTATION:	APPELLANT In person FIRST & SECOND RESPONDENTS No appearance THIRD RESPONDENT No appearance FOURTH RESPONDENT No appearance
ORDERS:	Orders made 6 May 2005: Appeals dismissed

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

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

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

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

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

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

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

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

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

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

whether before or after the proceedings are disposed of.

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

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

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

REASONS FOR DECISION

1 These are the written reasons for decision that the Tribunal gave orally on 6 May 2005. Minor amendments have been made to those oral reasons.

2 This is an application by a man who we refer to in these reasons as ‘PS’. PS is the son of a seventy-two year old woman who we will refer to as ‘PT’. PS looks after his mother in Housing Department accommodation. PT has Alzheimer’s disease and is severely restricted in her capacity to move around.

3 The formal parts of this decision are that we are satisfied that PS was a party to both the financial management and the guardianship applications before the Guardianship Tribunal. That conclusion is based on the fact that he is the carer or his mother under section 3F(2)(d) of the Guardianship Act 1987. A similar provision appears in s 3F(5)(d) in relation to financial management so in that capacity PS has standing to bring an appeal against a decision of the Guardianship Tribunal. An appeal is as of right on a question of law and by leave of the Appeal Panel in relation to the merits of the decision.

4 We note, as an aside, that the Guardianship Tribunal did not identify PS as a party to the financial management order and that has caused some confusion in the Appeal Panel proceedings. However, we are satisfied, despite that omission, that he was a party to that application and is entitled to appeal against the financial management order.

5 The original application for a guardianship and a financial management order was made by a social worker from the Department of Housing. On 7 February 2005 the Guardianship Tribunal wrote to PS telling him that he was invited to the hearing and asking him to provide any information or opinions he may have in relation to the applications. The letter went on to say,

You are also invited to present written material to the Tribunal whether or not you will attend the hearing particularly if you disagree with anything in the applications. Please make sure that this material is with the Tribunal at least three days before the hearing. If you do not attend the hearing or send a statement the Tribunal is empowered to make an order without further contact from you. You will find additional important information about the hearing and the Guardianship Tribunal on the attached sheet.
6 There is no dispute that PS received that letter within a few days of 7 February and that he had a conversation with the investigation officer from the Guardianship Tribunal, Jane Samek on 11 February 2005 and again on 16 February 2005. During the course of that conversation it is not in dispute that Ms Samek offered PS the opportunity to participate in the hearing by phone and PS indicated that he would do so. That evidence is recorded in the investigation report from Ms Samek dated 28 February 2005.

7 The hearing took place in Penrith at 2pm on 2 March 2005. PS has told us today that he waited by the phone until at least 2.15pm on that day. He said that he was quite busy because his mother had had a seizure the day before and he had to watch her. He said he could have been out in the backyard hanging out washing and missed the call because he did have a lot to do that day. PS says that the Tribunal should have tried to contact him either some time later in the afternoon or during the evening.

8 The grounds of appeal are on the merits of the Guardianship Tribunal’s decision rather than on any question of law, however the point that PS raises suggests that he is submitting that there has been a breach of procedural fairness in the way the Guardianship Tribunal conducted its proceedings. Although that was not something PS expressly raised, we have decided to deal with his appeal as an appeal both on a question of law and on the merits.

9 We are satisfied that adequate notice was given of the time, date and place of the hearing and that PS had a reasonable opportunity to present his case. There is no absolute right to participate in the hearing; all that is required is that reasonable notice be given and that there is a reasonable opportunity to be heard. Those propositions are clear from cases such as Kioa v West (1985) 159 CLR 550 per Mason J at 585 and other authorities which we will not go into detail about today.

10 The final decision we need to make is whether or not the appeal should be extended to the merits of the Guardianship Tribunal’s decision. There is a decision of Young J in K v K [2000] NSWSC 1052 which suggests that one basis for granting leave would be if the Tribunal had gone about its fact finding process in an unorthodox manner or in a manner which is likely to produce an unfair result. We agree with PS that the way the Guardianship Tribunal went about determining the facts was not ideal in the sense that PS was not there or not available by phone to give evidence. One issue which is of some concern is that it appears that the Tribunal was either not aware, or at least did not record the fact, that PS was putting himself forward as a suitable person to be appointed as the financial manager of his mother’s estate. The Tribunal said, somewhat cryptically, in their reasons that, “No suitable person presented to the Tribunal as being willing to take on the role of financial manager. The Protective Commissioner will need to be appointed in these circumstances”. It is not clear from that passage whether the Tribunal was saying that PS was not a suitable person to be the financial manager or whether he had not presented himself on the day as being willing to undertake that role.

11 Despite this confusion, we are not persuaded that we should grant leave to extend the appeal to the merits of the decision. The Tribunal did not go about its fact finding process in an unorthodox manner, or in a manner that was likely to produce an unfair result. One factor which has influenced our view is that PS has an avenue under Section 25 of the Guardianship Act to seek a review of the Guardianship Order and similarly under Section 25R to apply for the revocation or variation of a financial management order and/or to review the appointment of the manager under Section 25S.

12 Those are the reasons for dismissing the appeals today.