PZ v NSW Trustee and Guardian

[2010] NSWADTAP 14

Appeal Panel - External

CITATION:	PZ v NSW Trustee and Guardian [2010] NSWADTAP 14
PARTIES:	APPELLANT PZ RESPONDENT 1 NSW Trustee and Guardian RESPONDENT 2 QP RESPONDENT 3 QO
FILE NUMBER:	098015
HEARING DATES:	11 January 2010
SUBMISSIONS CLOSED:	11 January 2010
DATE OF DECISION:	15 March 2010
BEFORE:	Chesterman M - Deputy President; Millar J - Judicial Member; Bolt M - Non-Judicial Member
CATCHWORDS:	External appeal – procedural fairness
DECISION UNDER APPEAL:	Review of a guardianship order; making of a financial management order
FILE NUMBER UNDER APPEAL:	C/41759
DATE OF DECISION UNDER APPEAL:	07/31/2009
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Guardianship Act 1987 NSW Trustee and Guardianship Act 2009
CASES CITED:	Carew v Protective Commissioner & Ors [2005] NSWADTAP 13GM v Guardianship Tribunal & Ors; GM v Protective Commissioner & Ors [2003] NSWADTAP 59Kioa v West (1985) 159 CLR 550 Re Refugee Tribunal; ex parte Aala (2000) 75 ALJR 52
REPRESENTATION:	APPELLANT In person First Respondent: No appearance Second Respondent: In person Third Respondent: B Ramjan, guardian ad litem
ORDERS:	The appeal is dismissed.

REASONS FOR DECISION

The decisions under appeal

1 The Appellant, to whom the pseudonym ‘PZ’ is given in these reasons, appeals against two decisions made by the Guardianship Tribunal (‘the Tribunal’) on 31 July 2009. The appeal is brought under Part 1A of Chapter 7 of the Administrative Decisions Tribunal Act 1997.

2 At the commencement of its reasons for these decisions on 31 July 2009, the Tribunal summarised the background to the proceedings in the following terms (names of individuals and places have been omitted in order to preserve the parties’ anonymity):-

QO is an 86 year old man with dementia and a history of strokes. He has 2 children – QP and PZ. Until recently, he has been residing in his private rental accommodation in [a suburb of Sydney]. More recently, his daughter PZ had made arrangements for her father to stay with her at a property in [a village in the Blue Mountains region]. There is significant conflict between QO’s children, to the point where there are assertions of some physical violence between them. The conflict is alleged to extend to QP’s extended family. QP objects strongly to his father residing with his sister. He and his family live in a suburb of Sydney, close to QO’s rental accommodation. PZ believes that her brother and their family are unable to provide proper care for their father, and that he can no longer reside safely at his usual residence by himself.

There are also allegations and cross-allegations of improper financial dealings.

3 At the Tribunal hearing on 31 July 2009, the parties present were PZ, QO, QP, the Public Guardian and the NSW Trustee. A number of other individuals, including other members of QO’s family, gave evidence.

4 In the first of the two decisions under appeal, the Tribunal renewed and varied a limited guardianship order that it had made on 24 April 2009 with respect to QO. It ordered that QO should remain under guardianship, that his guardian should continue to be the Public Guardian, that this guardianship should be for a period of two years (subject to variation by the Tribunal) and that the guardianship should be limited to certain functions specified in the order.

5 In the second decision, the Tribunal ordered that QO’s estate should be subject to management under the NSW Trustee and Guardianship Act 2009 and committed the management of the estate to the NSW Trustee. This order was made with the consent of PZ, who had expressly declined to continue managing her father’s affairs under an Enduring Power of Attorney that he had executed in her favour on 17 December 2008.

6 In deciding to appoint the NSW Trustee as financial manager, the Tribunal gave consideration to, but rejected, three alternative proposals for financial management. The proposed financial managers were (a) QP, acting alone; (b) the solicitor who prepared the Power of Attorney for QO on 17 December 2008, acting alone; and (c) this solicitor, acting jointly with another solicitor who was QO’s cousin and had previously acted for him.

7 This second order had the effect of suspending the operation of the Power of Attorney of 17 December 2008 – the validity of which had been challenged by QP on the ground of lack of capacity – and also of a previous Enduring Power of Attorney that QO had executed in favour of QP in May 2006.

8 In a third decision made on 31 July 2009, the Tribunal dismissed an application by QP for review of the Enduring Power of Attorney of 17 December 2008. This third decision by the Tribunal is not under challenge in the present appeal.

9 A consistent theme in the Tribunal’s reasons for these decisions was its concern about the impact of the degree of conflict between the members of QO’s family. It described this conflict (at p 11) as ‘long-standing and deep’. This concern prompted it to appoint independent and objective decision-makers – namely, the Public Guardian and the NSW Trustee – as QO’s guardian and financial manager respectively.

The parties to the appeal

10 As already stated, the Appellant in the present proceedings is PZ. She represented herself at the hearing of the appeal on 11 January 2010.

11 The First Respondent is the NSW Trustee and Guardian. In its reply to the notice of appeal, it stated that it did not wish to present a case or make submissions in relation to the matter under appeal. It did not appear at the hearing.

12 The Second Respondent is PZ’s brother, QP. He represented himself at the hearing.

13 The Third Respondent is QO. He was present at the hearing, being represented by Ms Barbara Ramjan, who had previously been appointed as his guardian ad litem.

14 Before the hearing, the Tribunal advised, in accordance with normal practice, that a representative would be available to provide comment on its practices and procedures, if this would be of assistance to the Appeal Panel.

The grounds of the appeal

15 The principal ground advanced by PZ in her appeal was that at the hearing on 31 July 2010 the Tribunal had denied her procedural fairness. She relied in particular on the following matters: (a) because she had not previously been informed of the Tribunal’s requirement that documents that a party wished to tender should be submitted to it before the hearing, she was not permitted to tender certain documents; (b) the Tribunal refused or failed to give her opportunities to explain certain matters to it; (c) in making the decisions under appeal, the Tribunal had taken into account a number of documents tendered by QP even though, in breach of its requirements, they had not been filed at least seven days before the hearing; and (d) the Tribunal had not advised her, an unrepresented party, that if she believed that the late receipt of such documents was prejudicial to her she was entitled to apply for an adjournment of the hearing.

16 PZ also maintained that the Tribunal had erred (a) in admitting unsworn evidence that was not tested in cross-examination and (b) in preferring without good cause the evidence and the opinions of certain parties and witnesses when determining questions of fact and making its orders.

The alleged denial of procedural fairness

17 It is convenient to outline under four headings the instances of denial of procedural fairness alleged by PZ.

18 1. Refusal to permit tender of documents. In her submissions on the appeal, PZ described the documents that she sought unsuccessfully to tender at the Tribunal hearing. They fall into two categories.

19 The first category comprised documentation claimed to support an assertion by her that she had worked with her father in an investment broker business and in other businesses that he had owned. She maintained that these documents were important evidence because (a) they rebutted a claim by QP that she had improperly withdrawn funds from a bank account in QO’s name and (b) they showed that QP had lied to the Tribunal.

20 The documents in the second category were credit card statements claimed by her to show that QP had used his father’s credit card to pay for services for his own benefit.

21 When asked by the Appeal Panel to identify the stage in the Tribunal proceedings at which the Tribunal rejected these tenders, PZ referred to ‘the end of the transcript’. At p 82 of the transcript (which contains 97 pages), PZ endeavoured to tender documents. On being asked by the Presiding Member to identify them, she stated that they supported her objection to QP being appointed as QO’s financial manager and that they demonstrated that QP had improperly used QO’s credit card. At pp 83-84 and again at p 88, the Tribunal stated that it would not accept these documents on the grounds that the tender was being made ‘very late in the piece’ and ‘proper notice’ had not been given.

22 In its reasons at p 17, the Tribunal referred to this matter. It stated that the documents had been tendered in support of an allegation of credit card fraud made by PZ against QP. It indicated that the basis on which it rejected the tender was that there ‘had been no prior notice of this material or this assertion’ and that ‘it would not be procedurally fair to [QO] or to [QP]… to allow this material to be filed and discussed at the end of the hearing day without a proper opportunity for a response’.

23 The Notice of Hearing distributed by the Tribunal to the parties before the hearing on 31 July 2009 stated that all documents to be relied upon were to be filed in the Tribunal no later than seven days before the hearing. In his written submissions, QP argued also that since PZ had been involved in previous proceedings in the Tribunal of a similar nature to the present proceedings (this assertion was not challenged), she was fully aware of its procedures and requirements.

24 During the hearing of the appeal, the Appeal Panel asked PZ why she now claimed that the documents that she sought to tender also related to her employment in her father’s business and therefore bore upon her own honesty in managing her father’s affairs. Her reply was that at the Tribunal she had not been given an opportunity to explain the nature of all the documents.

25 Immediately following one of the explanations given by the Presiding Member at the hearing (at pp 83-84 of the transcript) as to why the Tribunal would not accept the documents, PZ is recorded as saying ‘Can I also add…’ The Presiding Member, apparently interrupting her, said that before she added anything QP should have the opportunity to respond to a statement previously made by another person at the hearing. The Presiding Member did not any later stage ask PZ what it was that she wished to ‘add’.

26 2. Refusal or failure by the Tribunal to permit PZ to explain certain matters to it. The matters to which PZ referred in this part of her submissions in the appeal again fell into two categories.

27 First, she claimed that the Tribunal refused to permit her to put forward her allegation that QP had improperly used QO’s credit card. The circumstances of this refusal have just been outlined. As the Tribunal’s reasons indicated at page 17, it refused to permit PZ to make an allegation of this nature without proper notice, in addition to rejecting her tender of documents purporting to substantiate the allegation.

28 Secondly, she maintained that although the Tribunal accepted from QP a tender of bank statements relating to an account held by QO, on which handwritten notes made by QP implied that she had ‘absconded’ with money belonging to QO, the Tribunal failed to provide her with an opportunity to explain how this money had been spent.

29 When asked by the Appeal Panel to identify any part of the transcript at which the Tribunal refused to provide such an opportunity, PZ replied that there was no explicit refusal, but that after she had told the Tribunal that the money was used to pay bills on QO’s behalf, she did not have a sufficient opportunity to explain the matter in detail. She also acknowledged that the Tribunal made no finding regarding QP’s allegation that she had used the money for her own benefit.

30 3. Acceptance of documents tendered by QP despite failure on his part to file them at least seven days before the hearing. At the appeal hearing, PZ alleged that on 28 July 2009, only three days before the hearing, she received certain documents from the Tribunal. According to an email sent to her on that day by Ms Paula Norris, a Senior Investigation Officer at the Tribunal, the documents had been received by the Tribunal ‘today’. During the appeal hearing, she was shown a copy of a 71-page statement, with annexures, that QP had filed in the Tribunal. She identified these as the documents that came to her on 28 July 2009.

31 QP pointed out to the Appeal Panel, however, that this 71-page statement by him bore a date stamp of the Tribunal indicating that it had been filed on 24 July 2009, seven days before the hearing.

32 PZ also alleged that on 29 July 2009 she had received from Ms Norris further documents that, according to an email bearing that date from Ms Norris, had been received by the Tribunal ‘today’. The email showed that these documents relevantly included a statement, filed on 29 July 2009, by a daughter of QP, together with a copy of a phone bill and some video footage.

33 The transcript of the Tribunal hearing indicates at page 7 that near the commencement of the hearing the Presiding Member, in the course of identifying documents that had been filed, referred both to the statement by QP’s daughter and to QP’s ‘fairly lengthy submission… with attachments… and other documents’. When he asked whether the latter set of documents had been ‘distributed to people’, PZ said: ‘I’ve seen those.’ She did not at this stage, or at any later stage, raise any objection to any of the documents mentioned by the Presiding Member being considered by the Tribunal, nor did she say anything to the effect that she was prejudiced by having received them only a short time before the hearing.

34 4. Failure by the Tribunal to advise PZ of her right to apply for an adjournment. PZ claimed at the appeal hearing that, being an unrepresented litigant at the Tribunal proceedings, she did not realise that if she thought she had suffered prejudice on account of the late receipt of QP’s 71-page statement, or indeed of any other document, she could apply for an adjournment of the proceedings. She submitted that the Tribunal should have advised her of her entitlement to do this.

35 The transcript does not record any advice of this nature being furnished to PZ by the Tribunal, or indeed by anyone else, during the Tribunal hearing. As pointed out above at [33], however, the transcript also shows that at the hearing she did not indicate, expressly or by implication, that she had not had sufficient time to give proper consideration to the documents that she not received until the last few days before the hearing.

36 The Appeal Panel’s conclusions on procedural fairness. As PZ argued in her written submissions, the Tribunal was bound at the hearing to afford procedural fairness to any person whose interests, rights or legitimate expectations are affected. She cited the following dictum of Mason J in the well-known case of Kioa v West (1985) 159 CLR 550 at 584:-

In the ordinary case, a person whose interests, rights or legitimate expectations are affected should be given an opportunity to deal with adverse information that is credible, relevant and significant to the decision to be made.

37 In a case referred to in QP’s written submissions, GM v Guardianship Tribunal & Ors; GM v Protective Commissioner & Ors [2003] NSWADTAP 59, an Appeal Panel of this Tribunal made the following observations at [38 – 39] regarding the requirement of procedural fairness in the context of Guardianship Tribunal hearings:-

38 In this case we are concerned with one aspect of the rules of procedural fairness, namely the hearing rule. That rule requires that a decision maker hear a person before making a decision affecting their interests. McHugh J spoke generally of this concept in Re Refugee Tribunal; ex parte Aala (2000) 75 ALJR 52 at 73:

One of the fundamental rules of the fair hearing doctrine is that a decision-maker should not make an adverse finding relevant to a person's rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided. It is a corollary of the warning rule that a person who might be affected by the finding should also be given the opportunity to adduce evidence or make submissions rebutting the potential adverse finding ( Mahon v Air New Zealand Ltd [1984] AC 808 at 820-821.) [emphasis added]

39 The content of the hearing rule must be “appropriate and adapted to the circumstances of the particular case.” ( Kioa v West (1985) 159 CLR 550 per Mason J at 585.) Our task is to determine the content of the hearing rule in light of the Tribunal's jurisdiction, the statutory requirements about how that jurisdiction is to be exercised and judicial statements concerning the meaning of the obligation to abide by the rules of natural justice.

38 We have no doubt that PZ is a person whose ‘interests, rights or legitimate expectations’ were ‘affected’ by the Tribunal’s decisions under appeal to a sufficient degree to entitle her to maintain that a denial of procedural fairness to her could provide grounds for setting aside either or both of these decisions.

39 We have concluded, however, that PZ has not made out her claim that on account of a denial of procedural fairness to her the Tribunal’s decisions should be set aside. Four considerations underlie this conclusion.

40 The first of these considerations is particularly relevant to the alleged instances of denial of procedural fairness outlined at [18 – 29] above. These concerned evidence on the questions (a) whether QP had behaved honestly in certain dealings involving QO’s money and (b) whether PZ herself had acted honestly in this same context. But the honesty of QP’s and PZ’s behaviour was only thought relevant by the Tribunal to the extent that it placed significant weight on the fact that each of them accused the other of dishonesty. It did not endeavour to reach any conclusions as to the rights and wrongs of this dispute between them. It held, as already indicated, that because the discord between them was ‘long-standing and deep’, it should appoint independent and objective decision-makers as QO’s guardian and financial manager respectively.

41 The second consideration also relates particularly to these instances of alleged denial of procedural fairness. It is that the evidence and the documents which, according to PZ, she should have been permitted to put before the Tribunal were relevant primarily, if not entirely, to a decision by the Tribunal that was made in response to an initial suggestion by her and was never at any point opposed by her. This was the decision to appoint the NSW Trustee as the financial manager of QO’s estate. PZ did not herself want to take on this role, so evidence rebutting QP’s allegation of dishonesty on her part was not relevant in this context. If the Tribunal had acceded to QP’s desire to take over management of QO’s estate, the exclusion of evidence casting doubt on his honesty might have given grounds for challenging its decision. But this was not what the Tribunal decided.

42 Thirdly, PZ’s claim that QP filed his 71-page statement, with annexures, later than was permitted by the Tribunal’s procedures (see [30 – 33] above) was simply not borne out by the evidence. She alleged at the appeal hearing that this documentation came to her on 28 July 2009. But the Tribunal’s date stamp on it shows that it was received on 24 July, seven days before the hearing. It must therefore be assumed that Ms Norris’ statement in her email of 28 July to PZ that the documentation was received ‘today’ was incorrect, or that this email referred to documents other than the 71-page statement.

43 The fourth and final consideration that we take into account relates to the alleged matters outlined above at [30 – 35]. In our opinion, the Tribunal’s obligation to afford procedural fairness to PZ did not require it either to reject documents filed after 24 July 2009 (such as PQ’s daughter’s statement) or to advise PZ of her right to apply for an adjournment on the ground of the late receipt of QP’s 71-page statement. Our reason for so holding is that she gave no indication that she suffered any prejudice on these grounds. Although she represented herself, she had previously been involved in Tribunal hearings of the same kind, and therefore had some familiarity with the Tribunal’s procedures.

The Tribunal’s decision to admit unsworn evidence that was not tested in cross-examination

44 The witnesses to whom this ground of appeal related were QP’s two children and his stepson. PZ claimed that the Tribunal erred in ‘not having’ their evidence ‘tested in cross-examination’ and that cross-examination of them would have demonstrated that they had conspired with QP to mislead the Tribunal. She also objected to the fact that QP’s evidence was not given on oath.

45 During the hearing, the Appeal Panel drew PZ’s attention to the passage at page 7 in the transcript, mentioned above at [33], where the Presiding Member mentioned the receipt of statements from QP’s children and stepson. The Panel pointed out to her that she did not object to the admission of their statements into evidence and did not at any stage ask for an opportunity to cross-examine them.

46 As QP claimed in his written submissions, an Appeal Panel of this Tribunal held in Carew v Protective Commissioner & Ors [2005] NSWADTAP 13 at [29 – 34] that a failure by the Guardianship Tribunal, in a case such as the present, to advise the parties before it that they have the right to cross-examine any witness does not of itself constitute a denial of procedural fairness.

47 On our understanding of PZ’s submissions, she did not allege that the Tribunal denied her the opportunity to cross-examine these witnesses. Her claim seems to have been that the Tribunal should either have advised her of her right to engage in cross-examination or engaged on its own part in this process.

48 Having regard to the decision in Carew and to the fact that PZ has been a participant in prior proceedings of a similar nature to these proceedings, we dismiss this ground of her appeal.

The Tribunal’s decision to prefer, without good cause, the evidence and the opinions of certain parties and witnesses

49 In this connection, PZ claimed that a number of findings and rulings made by the Tribunal showed that it had given undue weight, or in some instances insufficient weight, to the evidence of certain parties and witnesses. She did not, however, identify any specific finding of relevance in relation to which she asserted that evidence was wholly lacking, nor did she make any other assertion that might amount to a claim of legal error.

50 It is well recognised that in appeal proceedings such as these it is not open to the appellant to seek a wholesale review of the merits of the Tribunal’s decision.

51 This ground of appeal is rejected.

52 It follows that the appeal must be dismissed.