RJ v Public Guardian

[2005] NSWADTAP 70

Appeal Panel - External

CITATION:	RJ v Public Guardian & ors [2005] NSWADTAP 70
PARTIES:	APPLICANT RJ FIRST RESPONDENT Public Guardian SECOND RESPONDENT Protective Commissioner THIRD RESPONDENT RK DECISION MAKER Guardianship Tribunal
FILE NUMBER:	058013
HEARING DATES:	11/11/05
SUBMISSIONS CLOSED:	11/11/2005
DATE OF DECISION:	12/05/2005
DECISION UNDER APPEAL:	2005/1324, 2005/1325
BEFORE:	Hennessy N - Magistrate (Deputy President); Millar J - Judicial Member; Whaite A - Non Judicial Member
CATCHWORDS:	Financial management order - making - Guardianship order - making - Nature of evidence - Opportunity to be heard - Procedural fairness
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	C/30907
DATE OF DECISION UNDER APPEAL:	05/30/2005
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Guardianship Act 1987
CASES CITED:	Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 149 Hopkins v Smethwick Board of Health (1890) 24 QBD 712 K v K [2000] NSWSC 1052 Kioa v West (1985) 159 CLR 550 Re R [2000] NSWSC 886 (17 August 2000).S v S [2001] NSWSC 146
REPRESENTATION:	APPELLANT I Todd, counsel THIRD RESPONDENT In person DECISION MAKER E Cho, solicitor
ORDERS:	1. The guardianship order in relation to RJ made by the Guardianship Tribunal on 16 June 2005 is affirmed; 2. The financial management order in relation to RJ made by the Guardianship Tribunal on 16 June 2005 is affirmed; 3. Leave to extend the appeal to the merits of the decision is refused.

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.
Section 126 provides
(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

Introduction

1 RJ is a woman who has a history of bipolar affective disorder. One of her brothers, RK, applied to the Guardianship Tribunal for a guardianship and financial management order in relation to her. RJ did not attend the hearing at the Guardianship Tribunal although there is no dispute that she was aware of it. The Guardianship Tribunal appointed the Public Guardian as RJ’s guardian for a period of 12 months to make decisions on her behalf about her accommodation, health care, medical and dental treatment. The Tribunal also appointed the Protective Commissioner as financial manager of RJ’s property and other financial affairs. RJ appealed to the Appeal Panel against those decisions. She had legal representation at the hearing and participated herself by phone. The only active respondent was her brother, RK. Ms Cho represented the Guardianship Tribunal.

2 The Appeal Panel's jurisdiction to hear external appeals comes from s 67A of the Guardianship Act 1987 (the Act) and s 118A of the Administrative Decisions Tribunal Act 1997 (ADT Act). An external appeal may be made as of right on any question of law or by leave on any other ground. (Sections 118B(1) of the ADT Act.) RJ appealed on questions of law and sought leave to appeal against the merits of both decisions.

Grounds of appeal

3 The grounds of appeal that:

the Guardianship Tribunal denied RJ procedural fairness by not ensuring that she had adequate notice of the hearing;

the Guardianship Tribunal denied RJ procedural fairness by not giving her a reasonable opportunity to respond to the evidence;

in relation to the guardianship order, the Guardianship Tribunal made findings that RJ was a person with a disability and was in need of a guardian without adequate evidence to support those findings; and

in relation to the financial management order, the Guardianship Tribunal made findings without adequate evidence to support those findings.

Adequate notice of the hearing?

4 Legal principles. The ‘hearing rule’ of procedural fairness requires a decision maker to hear a person before making a decision affecting his or her interests. Two components of that rule relevant to this case are that a person whose interests are affected by a decision be given adequate notice of the hearing and that they be given an adequate opportunity to be heard. The common law rule is that parties should be given reasonable notice of the time, date and location of the hearing. (Hopkins v Smethwick Board of Health (1890) 24 QBD 712 at 715.) There are also statutory requirements in s 10 and s 25I of the Act in relation to the service of applications for guardianship and financial management respectively. Those provisions require the applicant (in this case RJ’s brother) to serve a copy of the application on each party to the proceedings. A copy of the application must be endorsed with a notice specifying the time, date and place of the hearing.

5 Evidence as to service. The Statement of Service of Notice of Hearing completed by RJ’s brother states that the notice was served by post on 18 May 2005 addressed to RJ at her former husband’s address. The hearing took place on 30 May 2005. RJ acknowledges that she was aware of the hearing but says she was not given reasonable notice. She says that her son told her about the hearing late in April 2005. She also admitted that one of her brothers sent her an email on 11 May 2005 which she read on 12 May. She said that the email asked her to consider the appointment of a financial manager on the assumption that she was not receiving any social security benefits. She says that the email did not refer to the application to the Guardianship Tribunal.

6 RJ’s evidence about notice. RJ gave evidence by phone to the Appeal Panel in which she said that she could not remember when she became aware that there was to be a hearing at the Guardianship Tribunal. She said she knew that her brother had put in an application for a guardian and a financial manager to be appointed. RJ said she was aware of the hearing and that she had read the application form that her brother had filled in. She said she was intending to go to the hearing but she couldn’t go because the police and the media were harassing her and had removed the number plates from her car. When asked whether she had attempted to contact the Guardianship Tribunal to tell them that she could not attend the hearing she indicated that she had not.

7 Inquiries as to service. RJ alleges that the inquiries made by the Tribunal to determine whether she had been given notice of the hearing were not satisfactory particularly in view of the nature of the orders sought in the application. The finding of the Tribunal that the Applicant “chose not to attend the hearing” was based on “facts” for which RJ said there was no evidence. Those “facts” included that RJ’s former husband had spoken to her, that they had exchanged emails and that RJ had told her former husband that she would not be attending. The submission that there was no evidence to support the Tribunal’s findings is not correct. The transcript shows the following exchange:

Member: the first question though is, does anybody know if she actually knows this is on.

Brother: She does.

Ex husband: She does. I saw her this morning. She knew I was coming here.

Member: OK. And papers were sent to her at your address. Is that right?

Ex husband: That’s right yes

Member: Has she actually ever got the papers?

Ex husband: My son, our son, opened it . . . He read to his mother and my ex-wife has been in my place. Therefore she has at least – the envelope is still at home at least. Right now it is with me but she had the opportunity many times to open it and read it.

Brother No 2: I’ve also emailed her because that’s the only way we’ve got of communicating with her. She received it, I know that much, because she rang my home. Unfortunately I was not there to take the call. My 85 year old father in law was, who’s stone deaf, and she just abused him and hung up.

. . .

Member: Do you know what her attitude to it is? Do you know what she thinks about it?

Ex husband: She’s no – she’s against all authority – against all anything. She doesn’t want to lose her freedom.

8 Findings. It is not in dispute that RJ had notice of the hearing. While there was no evidence as to precisely when RJ became aware of the hearing, we are satisfied that she was aware of it at least a week prior to the hearing. There has been no denial of procedural fairness in relation to the adequacy of the notice. The Tribunal made inquiries as to whether RJ was aware of the hearing and what her attitude to it was. In any case, it is not an error of law for the Tribunal to fail to make satisfactory inquiries as to whether reasonable notice has been given.

Adequate opportunity to be heard?

9 Legal principles. A second aspect of the hearing rule is that a decision maker must hear a person before making a decision affecting their interests. Normally a person is entitled to attend the hearing in order to make relevant submissions, give evidence and call witnesses. However, as with the notice rule, this rule must be applied in a way which is “appropriate and adapted to the circumstances of the particular case”. (Kioa v West (1985) 159 CLR 550 per Mason J at 585.)

10 RJ’s submissions. RJ’s representative made the point that the Tribunal did not need to make a decision in haste. It could have adjourned the proceedings and/or arranged to speak to RJ by phone. Alternatively, the Tribunal could have communicated with RJ by email especially given the seriousness and magnitude of the orders it was being asked to make. There was no suggestion that RJ was a danger to herself or others, so the Tribunal should not have gone ahead with the hearing in her absence. In addition, the Tribunal should have contacted medical or other experts who had had recent contact with RJ to gauge her current level of capacity. Although the Tribunal attempted to contact such people by phone, they should not have gone on to make a final decision in the absence of up to date evidence about RJ’s mental state.

11 Finding. The Guardianship Tribunal satisfied itself that RJ was aware of the hearing. She had not contacted them to request an adjournment or to ask for any alternative arrangements to be made. We acknowledge that RJ had come to the attention of the police and the media in the days before the hearing and that she did not feel able to attend the hearing. However, the Tribunal did not make any legal error by failing to adjourn the hearing or to make alternative arrangements to accommodate RJ especially in the absence of any request to do so. Furthermore, even though the medical evidence before the Tribunal dated back to 2002, the Tribunal had oral evidence and evidence of emails RJ had sent which corroborated its finding that RJ had a disability as defined in the Act. We cannot detect any legal error in relation to this ground of appeal.

Insufficient evidence to make guardianship order?

12 RJ’s submissions. RJ’s representative submitted that the Tribunal’s findings that RJ was a person with a disability, that she was “restricted in one or more major life activities. . ” and that there was a need for a guardianship order, were made in the absence of evidence or were based on inadequate evidence. This is sometimes called the “no evidence” rule and is regarded as an element of procedural fairness. RJ’s representative pointed to several passages in the transcript of evidence which were not consistent with the Tribunal’s findings. For example, RJ’s ex-husband told the Tribunal that RJ had been living in her car since the end of 2002 or the beginning of 2003. That evidence was said to be inconsistent with other evidence that RJ was living in a house. There was also evidence that RJ’s ex-husband had made several attempts in the previous few months to get assistance for RJ from community mental health centres. RJ’s ex-husband told the Tribunal that someone spoke to RJ and “believed she was coherent and not in need of any help.” According to RJ’s representative that evidence suggests that RJ did not have a disability, or at least not to the extent found by the Tribunal.

13 Legal principles. The classic statement of the law on when a finding of fact can constitute an error of law was made by the Court of Appeal in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 149. That decision has been applied consistently by the Supreme Court and the Court of Appeal since 1985 and is binding on the Appeal Panel. It stands for the proposition that there is no error of law in making a finding of fact for which there was some evidence, even though the finding was “perverse” or contrary to the overwhelming weight of evidence (See Glass JA with whom Samuels JA agreed, at 155-156.)

14 Requirements of the legislation. Before making a guardianship order, the Guardianship Tribunal must satisfy itself that the subject person is a “person in need of a guardian”. In order to determine whether a person is a “person in need of a guardian” the Guardianship Tribunal must consider two things: firstly whether the person has a disability and secondly whether because of that disability the person is totally or partially incapable of managing his or her person. If the Guardianship Tribunal is satisfied that a person meets the definition of “a person in need of a guardian” it must then embark on the second step in the process, that is determining whether to appoint a guardian.

15 In s 3(2) of that Act, a “person who has a disability” is defined in the following terms:

In this Act, a reference to a person who has a disability is a reference to a person:
(a) who is intellectually, physically, psychologically or sensorily disabled,

(b) who is of advanced age,

(c) who is a mentally ill person within the meaning of Chapter 3 of the Mental Health Act 1990 , or

(d) who is otherwise disabled,

and who, by virtue of that fact, is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation.
16 In relation to the first step in the process, the Tribunal found that RJ suffers from bipolar affective disorder and is not receiving treatment for that condition. The Guardianship Tribunal went on to say that: “the evidence as to the manner in which [RJ] is living, her non-compliance with treatment regimes, and her lack of insight into her illness, led the Tribunal to conclude that she is at least partly incapable of making decisions concerning her own care and management.” In relation to the second step, namely whether to appoint a guardian, the Tribunal said: “Given the suspicion and distrust with which [RJ] apparently holds the members of her family, the Tribunal agreed that this was an appropriate case in which to appoint the Public Guardian as [RJ’s] guardian.”

17 Findings. Pointing to evidence in the transcript which is contrary to findings made by the Tribunal is insufficient to establish that the Guardianship Tribunal has made an error of law. Even if the Tribunal’s findings had been perverse or contrary to the weight of evidence, that does not constitute an error. In this case there was evidence to support the Tribunal’s findings and no error of law was made.

Insufficient evidence to make a financial management order?

18 RJ’s submissions. RJ’s representative made similar submissions in relation to the financial management order. In particular, RJ’s representative pointed to evidence in the transcript about RJ conducting Supreme Court proceedings, not being in receipt of social security benefits, accessing bank accounts and communicating by emails which was said to be contrary to the findings the Tribunal ultimately made.

19 Requirements of the legislation. Under s 25G of the Act, the Tribunal may make a financial management order only if the Tribunal has considered the person’s capability to manage his or her own affairs and is satisfied that:

(a) the person is not capable of managing those affairs, and

(b) there is a need for another person to manage those affairs on the person’s behalf, and

(c) it is in the person’s best interests that the order be made.

20 The findings of the Tribunal on these issues were that it was satisfied that as a result of her bipolar affective disorder RJ was unable to manage her financial affairs. The Tribunal went on to say: “Her inability to access social security benefits, her repeated reliance on her children to demand money from their father, and the difficulties in managing the Supreme Court proceedings all point to this.” Finally, the Tribunal noted that it had no doubt that there is a need to appoint a financial manager for RJ and that such an order would be in her best interests.

21 Findings. We repeat our earlier conclusion that pointing to evidence in the transcript which is contrary to findings made by the Tribunal is insufficient to establish that the Guardianship Tribunal has made an error of law. Even if the Tribunal’s findings had been perverse or contrary to the weight of evidence, that does not constitute an error. In this case there was evidence to support the Tribunal’s findings and no error of law was made.

Leave to appeal on the merits

22 There being no error of law, the next question for the Appeal Panel is whether to grant leave to hear the appeal on the merits of the decision. RJ sought leave to appeal against the merits of the Guardianship Tribunal’s decision in relation to both the guardianship and the financial management orders. According to RJ the decision is so manifestly unjust that it should be set aside.

23 The ADT Act does not contain any guidance on the relevant matters to be taken into account in determining whether leave should be granted. The Supreme Court has provided some guidance on this question in the cases of K v K [2000] NSWSC 1052; S v S [2001] NSWSC 146 and Re R [2000] NSWSC 886 (17 August 2000). Those cases interpret s 67 of the Act which is the equivalent provision in relation to appeals from Tribunal decisions to the Supreme Court. In K v K , Young J observed at [10] that ‘it has never been clearly decided what the circumstances are that should lead the Court to grant leave to appeal under s 67’, but went on to make a number of observations on this point: see para [10]-[15]. After considering the relationship between the Court and the Tribunal, Young J observed at [15]:

It would seem to me that s 67 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.
24 This case does not raise any broad questions of administration or policy and there is no suggestion that the Tribunal has gone about its fact finding process in such an unorthodox manner or in a way which is likely to produce an unfair result. In those circumstances we do not grant leave for this appeal to be extended to the merits of the Guardianship Tribunal’s decision.

Orders

1. The guardianship order in relation to RJ made by the Guardianship Tribunal on 16 June 2005 is affirmed.

2. The financial management order in relation to RJ made by the Guardianship Tribunal on 16 June 2005 is affirmed.

3. Leave to extend the appeal to the merits of the decision is refused.