ROGERS No. SCGRG-00-878

ROGERS
[2000] SASC 330

1................ WILLIAMS J. This is an application brought pursuant to s 70(1) of the Guardianship and Administration Act 1993, for leave to appeal to this Court against a decision of a District Court Judge, constituting the Administrative and Disciplinary Division of the District Court and sitting without assessors in accordance with s 20(4)(a)(b) of the District Court Act.

On 31 May 2000, Ann Maria Young and Johanna Albertina Strybos (the daughters of Cornelia Strybos of Alwyndor Nursing Home, Hove), sought orders from the Guardianship Board. On 9 June 2000 the Guardianship Board dealt with the application and ordered that public advocate (Mr Harley), be appointed guardian and public trustee be appointed administrator of the Estate of Cornelia Strybos. There were other consequential orders including liberty to apply for a review of the orders. Mr Alan John Highman, the present applicant for leave, complains that he was not given a proper opportunity on that occasion to defend an enduring power of attorney and enduring power of guardianship, and to provide evidence of their validity through the solicitor who prepared the relevant documents drawn in his favour.
On 30 June 2000 Mr Highman lodged an appeal to the District Court (Administrative Appeals Division) against the Board’s decision but on 14 July 2000 Mr Highman’s solicitor withdrew the appeal upon an intimation from the staff of the Guardianship Board that the earlier hearing would be reopened. However, when the Guardianship Board examined the matter for itself on 14 August 2000 the Board decided that it had no jurisdiction to reopen the matter. Thereupon Mr Highman by notice dated 18 August 2000 again appealed to the District Court with a view to reinstating his original complaint. Mr Highman put forward nine grounds of appeal including complaints as to the fairness of the Board’s procedures and the hearing process. It was also alleged that the Board was in breach of s 5 of the Guardianship and Administration Act 1993.
On 22 August 2000, Mr Ian Shephard as President of the Guardianship Board identified significant procedural errors. By letter dated 22 August 2000 Mr Shephard notified the District Court of his concern in the following terms:
“The abovementioned matter was first brought to my attention by an officer of the Office of the Public Advocate who raised concerns about the way the hearing on 9 June 2000 was conducted. In particular I was advised that an Enduring Power of Guardianship had been revoked without any specific findings as required by the legislation. I was further advised of the holder of the Enduring Power of Guardianship and the Enduring Power of Attorney were the same person and that they had not been given any opportunity to put their case to the Board. I undertook to speak to the presiding Deputy President, which I did briefly, a few days later. At about that time I also became aware that an appeal had been lodged.
My next involvement in this matter was when I was approached by a member of the Registry staff, who advised me that Janet Howell, who was acting for the appellant, believed the appeal must succeed and had therefore suggested that the matter be re-listed before the Board in order to avoid additional expense. Although I was not aware of this practice having been adopted in the past, I took the view that matters could be dealt with pursuant to Sections 30 and 36 of the Guardianship and Administration Act 1993, and advised the Registry accordingly. I was not advised that the appellant was not the applicants in the original application, nor was I aware that there was more than the appellant involved in the application.
I believe Ms Howell was therefore encouraged to withdraw her client’s appeal in the expectation that the matter would be re-listed before Board. Unfortunately, the Board before whom the matter was re-listed were not advised of these arrangements and took the view that the proposed course of conduct amounted to an abuse of process. They therefore declined to hear both applications. The Guardianship Board sincerely apologises to all concerned for the difficulties that have been created and trusts that the District Court will find an appropriate mechanism to provide justice to all concerned. Please note that this file has now been designated to require special attention and any response should be directed to myself or Deputy Registrar Tanya MacPhedran.”
It now appears that Mr Highman was not given the opportunity to defend his authority before the Board on 9 June 2000, and that there was a denial of natural justice. If enduring powers were in force as Mr Highman alleges, then it would appear, (arguably), that the Board’s statutory power was dependant upon the Board being satisfied of the matters set out in s 26(1)(b) of the Guardianship and Administration Act 1993.
On 4 September 2000, a District Court Judge dealt with the matter by remitting it to the Guardianship Board for hearing. In so doing, the Judge purported to exercise the powers of the Administrative Appeals Division of the District Court “administratively”. By his order, the District Court Judge also dismissed an application by the present applicants seeking to treat the appeal notice of 18 August 2000 as incompetent.
I note that in terms of s 20(4)(ab) of the District Court Act 1991 there is a limited power for the Judge to sit without assessors
“(i)... for the purposes of -
(A)... dealing with preliminary, interlocutory or procedural matters; or
(B) dealing with questions of costs; or
(C)... entering consent orders; or
(ii)... for a part of the proceedings relating only to questions of law,
and may, for that purpose or as a consequence, while sitting without assessors, make any ruling, order or judgment (including a final judgment) it considers appropriate;”
Ms Young and Ms Strybos seek to uphold the order of the Board made on 9 June 2000 and they complain about the order made on 4 September 2000. Amongst other submissions, they contend that Mr Highman abandoned his rights of appeal when he withdrew his appeal notice dated 30 June 2000. However, it is apparent on the evidence that Mr Highman’s solicitor withdrew the appeal under the mistaken belief that the Guardianship Board had decided to reopen its own previous decision. The solicitor withdrew the appeal in order to facilitate the review process, and in the mistaken belief that the appeal notice had served its purpose.
The present applicants, Ann Maria Young and Johanna Albertina Strybos, who lodged the original application to the Board on 31 May 2000 as daughters of the protected person, have status to pursue their complaint before the Supreme Court in terms of the present application. However, three strangers have lent their support to the proceedings including Mr Phillip Wayne Rogers who has acted as a “McKenzie friend” to Ms Young and Ms Strybos. Other applicants who have no status are Sharon Lynette Brown and David Archibald Brown. These latter people should not be heard. Mr Highman is joined as a party to the application.
On behalf of the present applicants, Mr Rogers argues that the Board cannot review its own orders. He contends that where the circumstances of the protected person change, then s 57 of the Act will apply to enable revocation or variation of existing orders. Mr Rogers also contends that the further appeal by Mr Highman dated 18 August 2000 is an abuse of process in view of the abandonment of the earlier appeal.
Mr Highman was represented before me by counsel as was the Protected Person. Mr Harley, the Public Advocate also attended. I allowed Mr Rogers to address me on behalf of himself and his co-applicants. His role went beyond that of McKenzie friend, but I insisted that Ms Young and Ms Strybos attend personally before me on the second day of the hearing. With some assistance from Mr Rogers I explained the reasons to Ms Young and Ms Strybos and satisfied myself that they understood the courses open to them. They then gave their consent to a proposal which I had put to the parties on the previous day.
For the purposes of the application for leave to appeal to this Court it is convenient to examine the merits of the matter which gives rise to the application for leave. The justice of the case is obvious. There were procedural defects in the hearing before the Guardianship Board on 9 June 2000 and the actions of the Board on that occasion need to be corrected. There was also an understandable error when Mr Highman’s solicitor withdrew his first appeal on 14 July 2000 under the mistaken belief that the matter of complaint was about to be corrected. It is now necessary that the Guardianship Board should continue the hearing on which it embarked on 9 June 2000, and that the matter should proceed by way of rehearing of the application made on 31 May 2000, and not by way of review of the defective decision made on that application. It would be unsatisfactory for the Board to review its decision of 9 June 2000 rather than rehear the application of 31 May 2000.
After a full hearing, (including an overnight adjournment), all parties now acquiesce in the view that there ought to be a rehearing before the Guardianship Board and all parties will now consent to appropriate orders to bring about this result.
It is therefore appropriate that leave to appeal should be granted in anticipation of the making of orders by consent to dispose of the appeal.
In my opinion, the combined effect of s 70 of the Guardianship and Administration Act 1993 and r 96A.03 of the Rules of the Supreme Court, is that the relevant appeal is to a single Judge of this Court on the footing that the District Court order of 4 September 2000 is interlocutory in nature. On this basis and with the consent of the parties, I will now exercise power in accordance with s 70(4) of the Guardianship and Administration Act 1993. I will allow the appeal and quash the orders of the District Court Judge made on 4 September 2000. There will be a direction, (in lieu of that given by the District Court), that the order of the Guardianship Board dated 9 June 2000 be set aside. There will be an order remitting the subject matter of the appeal to the Board for further hearing with respect to the application made to it on 31 May 2000.
I will invite the parties to speak to the minutes of order and in particular to nominate a date at which my order should take effect.
The interim order for a stay of proceedings which I imposed on 18 September 2000 will be discharged.

[2000] SASC 330

10 October 2000