QC v Guardianship Tribunal

[2009] NSWADTAP 76

Appeal Panel - External

CITATION:

QC v Guardianship Tribunal [2009] NSWADTAP 76

PARTIES:

APPELLANT
QC

FIRST RESPONDENT
Guardianship Tribunal

SECOND RESPONDENT
QD

THIRD RESPONDENT
QE

FILE NUMBER:

098013

HEARING DATES:

16 December 2009

SUBMISSIONS CLOSED:

16 December 2009

EXTEMPORE DECISION DATE:

16 December 2009

BEFORE:

O'Connor K - DCJ (President); Leal S - Judicial Member; Wunsch A - Non-Judical Member

CATCHWORDS:

Procedural Fairness – Misunderstanding by Tribunal of interested person’s attitude to appointment of independent financial manager for protected person

DECISION UNDER APPEAL:

2009/3690; 2009/1985

FILE NUMBER UNDER APPEAL:

C/41692

DATE OF DECISION UNDER APPEAL:

06/26/2009

LEGISLATION CITED:

Protected Estates Act 1983

REPRESENTATION:

APPELLANT
D Allen of counsel / Proctor and Associates

FIRST RESPONDENT
No appearance

SECOND RESPONDENT
No appearance

THIRD RESPONDENT
No appearance

COUNSEL ASSISTING
A Johnson, solicitor
Crown Solicitor's Office

ORDERS:

1. The appeal is allowed.
2. Appellant’s application for leave to extend to the merits is not granted.
3. The matter is remitted to the Guardianship Tribunal for it to reconsider its order dated 26 June 2009. We recommend that the further hearing of the original application in February 2010 and direct that it be not be later than 31 March 2010.

1 This is an edited version of ex tempore reasons given at the conclusion of the hearing of the appeal on 16 December 2009, and are published for general information.

2 PRESIDENT: The submissions today by Mr Allen for the appellant, QC, were comprehensive; as were the submissions by Counsel Assisting. We thank them for the work they have done. I recorded earlier in the day the various documents that the Tribunal has before it.

3 The following orders of the Guardianship Tribunal made 26 June 2009 are in issue in the appeal:

- the orders appointing the NSW Trustee and Guardian to exercise in respect of the protected person, QE, the function of ‘accommodation’, i.e. to determine where QE may reside; and the function of ‘services’, i.e. to make decisions on his behalf concerning major services to which he should have access;

- the financial management order.

4 The financial management order has three points: (1) that QE be subject to management under the provisions of the Protected Estates Act 1983, (2) the management of the estate be committed to the Protective Commissioner and (3) the order be reviewed within twelve months. As to those three points, we understand there is no dispute for the time being in relation to point 1, i.e. that QE’s estate needs to be subject to management. The dispute goes to points 2 and 3.

5 Our view is that there was an error on the part of the Tribunal which gave rise to a denial of procedural fairness to QC. QC has been in a relationship with QE for more than seven years. The Tribunal was mistaken in attributing to her the view that she was receptive to an independent financial manager being appointed, and more importantly that she was in agreement that that should occur.

6 We note that QC did have vested in her the health care function, that is to determine what health care and major and minor dental treatment should be given to QE. That decision is some measure of the trust that the Guardianship Tribunal reposed in QC. On the other hand, it is evident from the transcript of the hearing before the Tribunal, and its reasons for decision, that there was a degree of tension and conflict around the financial management issue. But it does not seem that it was extreme in the way sometimes seen in these cases.

7 The position nevertheless is that the Tribunal appears to have regarded its mistaken finding as to QC’s views in relation to the appointment of an independent financial manager to have been a significantly relevant consideration in terms of the order made. It is clear from the transcript of the hearing that she did not express her position in the way that it was recorded by the Tribunal. Consequently there has been a denial of procedural fairness. Had the Tribunal proceeded by reference to an accurate statement of her view, it may have been that a different decision might have been reached.

8 So the appeal is allowed as to that point. The question then becomes what should the Appeal Panel do. This has been the main question engaging our attention today.

9 It seems to the Appeal Panel that the orders of the Guardianship Tribunal should be left in place for the time being.

10 We should proceed in a way that has the Guardianship Tribunal look again at the matter quickly. The other factors that justify that course include, first, that QC has now made a decision to move to Long Jetty so that she will share QE’s house with him. The material before us today records a desire to renovate the house at Long Jetty in a manner that is more suitable to QE’s needs. That is obviously a matter that will involve some significant financial expenditure. There is also the suggestion, which is encouraging of course, that QE’s health may be improving, in which case the premise so far accepted that he is in need of financial management may itself fall for review.

11 Further, I see benefit if the Tribunal conveyed fuller information to QC than appears in the terms of the orders as to what her relationship is to be to the question of services that are not ‘major services’. She has been vested with the ‘health care’ function, but there is something of a lack of clarity as to what her freedom of action is in respect of services that are minor services. Do they belong to the ‘health care’ category?

12 As I have mentioned in argument and submissions, it seems to me that were the Appeal Panel to extend to the merits in the way that is desired, it would have to try to replicate as best it can the style of the Guardianship Tribunal in dealing with these matters. The Appeal Panel is inhibited from doing that by, at least, three factors. One is the changes of circumstances that have taken place since the order was first made. The second is the importance of ensuring that there is a sense of confidence in those affected by an Appeal Panel decision of the present kind that they are not then excluded from any substantive reconsideration that would occur if leave to extend to the merits is granted. QD, QE’s sister, participated in the hearing before the Tribunal. I would not go so far as to treat her non-appearance in the appeal proceedings as meaning that she is now entirely disengaged from the issue of the long term care arrangements that may affect her brother. The third element, it seems to me, is that the traditional practice of the Guardianship Tribunal is to have before it specialist and current reports as to the circumstances of the person the subject of the protection application. They are obtained through its investigative resources. This Tribunal is not that kind of Tribunal. We do not have a practical investigative arm.

13 Having regard to those various considerations, our view today is that the appeal should be allowed, and leave to extend to the merits not be granted. Instead, our order is that the matter be remitted to the Guardianship Tribunal for it to reconsider its order dated 26 June 2009. We recommend that the further hearing of the original application occur in February 2010 and direct that it be not be later than 31 March.