SAB v SEM
[2013] NSWSC 253
•21 March 2013
Supreme Court
New South Wales
Medium Neutral Citation: SAB v SEM & Ors [2013] NSWSC 253 Hearing dates: 21 March 2013 Decision date: 21 March 2013 Jurisdiction: Equity Division - Protective List Before: White J Decision: Amended summons dismissed. Plaintiff pay the defendants' costs.
Catchwords: EQUITY - guardianship - application to set aside orders of the Guardianship Tribunal - appeal under s 67 of the Guardianship Act 1987 - meaning of appeal "on a question of law" - considerations governing leave to appeal on a question of fact - requirement under s 14(2)(a)(i) to consider views of person in respect of whom order is to be made - whether failure to provide adequate reasons for Tribunal's decision - requirement under s 17(1)(b) of "no undue conflict" between interests of guardian and person in respect of whom order is to be made Legislation Cited: Guardianship Act 1987 Cases Cited: TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175
Hoe v Manningham City Council [2011] VSC 37
Smalley v Secretary, Department of Health and Ageing [2011] FCA 302
Palassis v Federal Commissioner of Taxation [2011] FCA 1305
B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187; (2008) 74 NSWLR 481
K v K [2000] NSWSC 1052
Slinko v Guardianship and Administration Tribunal [2006] QSC 39; [2006] 2 Qd R 279
EB v Guardianship Tribunal [2011] NSWSC 767
P v D1 [2011] NSWSC 257
Application of SJ [2011] NSWSC 372
Re B (No. 1) [2011] NSWSC 1075
Re F [2013] NSWSC 54
Mifsud v Campbell (1991) 21 NSWLR 725
SAS Realty Developments Pty Ltd v Kerr [2013] NSWCA 56Category: Principal judgment Parties: Samantha (Plaintiff)
Cynthia (1st Defendant)
Helen (2nd Defendant)
BM (3rd Defendant)Representation: Counsel:
A Norrie (Plaintiff)
In person (1st Defendant)
In person (2nd Defendant)
Solicitors:
Michael Kerridge & Co (Plaintiff)
File Number(s): 2012/94878
Judgment
HIS HONOUR: This is an appeal and an application for leave to appeal pursuant to s 67 of the Guardianship Act 1987 in respect of a decision and orders of the Guardianship Tribunal made on 25 July 2012. Pursuant to s 57 of the Guardianship Act, the names of the protected person and of the parties and witnesses before the Tribunal will be anonymised so that their identities cannot be ascertained. In these reasons I will call the third defendant, who is the protected person in question, by the initials "BM". The plaintiff is a daughter of BM. Where necessary I will refer to her by the pseudonym "Samantha". The first and second defendants are the other daughters of BM and, where necessarily, I will refer to them by the pseudonyms of "Cynthia" and "Helen".
The Guardianship Tribunal made a temporary guardianship order on 5 January 2012 appointing the Public Guardian as BM's guardian. That order was renewed as a further temporary guardianship order on 2 February 2012 and 16 February 2012. On 25 July 2012, it appointed the first and second defendants as joint guardians for BM for a period of 12 months, with authority to make decisions with respect to her accommodation, health care, medical and dental treatment.
The plaintiff seeks to have those orders set aside. All of the parties were parties to the proceeding before the Tribunal. Pursuant to s 67 of the Guardianship Act, the plaintiff is entitled to appeal as of right from the decision of the Tribunal on a question of law and otherwise by leave.
The right to appeal "on a question of law" is narrower than a right to appeal on a matter that involves a question of law. As Gummow J said in TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178:
"The existence of a question of law is now not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself."
A notice of appeal, where an appeal lies on a question of law, should articulate with precision the question of law in the appeal. In Hoe v Manningham City Council [2011] VSC 37, Pagone J said (at [4]) that:
"The question of law is the trigger for an appeal but is also the entire subject matter of the appeal and for both purposes it is essential that the question of law said to have been erroneously decided is identified exactly."
(See also Smalley v Secretary, Department of Health and Ageing [2011] FCA 302 at [27] and following; Palassis v Federal Commissioner of Taxation [2011] FCA 1305 at [35] and following; B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187 at [47] and [53]-[54]; (2008) 74 NSWLR 481 at 495-496 and 497-498.) Where there is an appeal on a question of law only, the right of appeal does not extend to a rehearing of factual questions.
The summons, as originally filed, did not seek to identify any questions or even errors of law, as distinct from what were asserted to be errors in the Tribunal's reasons. By an amended summons filed today, counsel for the plaintiff identified what are said to be errors of law in the Tribunal's reasons. In the course of his oral submissions, counsel formulated those alleged errors as questions on which an appeal lay, as of right.
Insofar as the alleged errors that were ultimately pressed are not errors of law, the plaintiff seeks leave to appeal. The principles in relation to a grant of leave to appeal have been addressed in a number of cases, in particular K v K [2000] NSWSC 1052; Slinko v Guardianship and Administration Tribunal [2006] QSC 39; [2006] 2 Qd R 279; EB v Guardianship Tribunal [2011] NSWSC 767; P v D1 [2011] NSWSC 257; Application of SJ [2011] NSWSC 372; Re B (No. 1) [2011] NSWSC 1075; and Re F [2013] NSWSC 54.
Without intending to be exhaustive, the considerations governing a determination as to whether leave should be given will include whether or not a question raised involves a matter of administration or policy which might have general application, whether or not the Tribunal's decision has been arrived at after the Tribunal members have directed themselves properly and fairly on the facts and not gone wrong in law, whether there is an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand, and whether the factual error was unreasonably arrived at and clearly mistaken. (See K v K at [14] and Slinko v Guardian Administration Tribunal at [9]-[16].)
Underlying these constraints is the need to recognise that Parliament has entrusted to the Tribunal the primary function of making the factual determinations required for a guardianship order, and that the Court should not grant leave to appeal unless the Tribunal has gone about that fact finding process in a way which is so unorthodox as to be likely to produce an unfair result. It is not enough that a judge might consider that he or she would have reached a different conclusion on the facts from the conclusion reached by the Tribunal.
The grant or withholding of leave is to be exercised having regard to the general principles in s 4 of the Act, including the principle that the welfare and interests of the person with disabilities is to be given paramount consideration. But that is not to say that the gateway requiring leave to appeal can be emasculated by the Court's too readily engaging in a detailed review of the facts with a view to detecting possible error.
The background to the application before the Tribunal is as follows: At the time of the hearing before the Tribunal last year, BM was 88. She suffers from dementia. It is common ground that she is unable to care for herself. It appears that until about 15 July 2011, she lived in a home at Clontarf which had previously been her home, but the ownership of which had been transferred to the plaintiff in 1991.
On 29 May 1998, BM executed an enduring power of attorney in favour of the plaintiff. On 20 September 2004, she executed an instrument appointing the plaintiff as her enduring guardian with the functions of deciding where she should live, what health care she should receive, what personal services she should receive and giving or withholding consent to medical or dental treatment. That appointment became effective when BM, because of disability, became totally or partially incapable of managing her person.
On 24 June 2005, BM signed a statutory declaration which was expressed to be made to deal with the contingency that either of Cynthia or Helen might contest a will she had made on 6 August 2004. In the statutory declaration BM stated that she had left the bulk of her estate to her daughter, Samantha, that is, the plaintiff, as Samantha had been the one who had supported her physically and emotionally, especially before and after her father's death, and had assisted her with domestic chores such as cooking, washing, ironing, cleaning, shopping and making her clothes, had driven her to appointments when needed, done her banking and carried out any secretarial duties that she needed. In the statutory declaration she also said that her relationship with Samantha was very close, not only because she lived with BM, but because Samantha was the one she knew she could trust or rely on when she needed to. The statutory declaration spoke of estrangement between BM and her other daughters, and details were given in the statutory declaration.
Following BM's admission to Manly Hospital on 15 July 2011, she became a resident at a nursing home at Manly Vale. In its reasons for decision of 5 January 2012 the Tribunal recorded that there was no agreement between the plaintiff and her two sisters as to where their mother should reside. The first and second defendants' view was that she was currently not being adequately cared for in the Manly Vale nursing home and should be transferred to another facility.
On 18 November 2011, the first and second defendants filed an application with the Guardianship Tribunal seeking a guardianship order with respect to BM. On 28 November 2011, there was listed before the Tribunal both an application for a guardianship order and an application for a financial management order. It appears that the application for the financial management order was dealt with on that day. An order was made committing the management of BM's estate to the NSW Trustee and Guardian.
The Tribunal's reasons for its orders of 25 July 2012 proceeded generally along the following lines. The Tribunal found that because of her disability, being dementia, BM was incapable of managing her person. This finding meant that the Tribunal was satisfied that BM was in need of a guardian and provided the jurisdictional basis for its making a guardianship order in respect of BM pursuant to s 14(1) of the Guardianship Act.
The Tribunal then addressed the question of the views of the parties as to whether a guardianship order should be made and, if one were made, who should be appointed as guardian. This was in compliance or purported compliance with its obligation under s 14(2)(a) of the Guardianship Act. That subsection provides:
"14 Tribunal may make guardianship orders
...
(2) In considering whether or not to make a guardianship order in respect of a person, the Tribunal shall have regard to:
(a) the views (if any) of:
(i) the person, and
(ii) the person's spouse, if any, if the relationship between the person and the spouse is close and continuing, and
(iii) the person, if any, who has care of the person.
(b) the importance of preserving the person's existing family relationships,
(c) the importance of preserving the person's particular cultural and linguistic environments, and
(d) the practicability of services being provided to the person without the need for the making of such an order."
The Tribunal then addressed the question of the importance of preserving BM's existing family relationships as required by s 14(2)(b) and concluded that it was satisfied that if no guardianship order were made, the plaintiff would not be willing to share information about BM with her sisters. The Tribunal concluded that excluding the first defendant from such information would interfere with her role in relation to BM and not preserve family relationships. Later in its reasons it concluded that the plaintiff had sought to exclude the first defendant from information about BM when she knew that the first defendant was a highly qualified health professional in aged care, and that her mother was not in a good condition. The Tribunal said that it appeared to it that that decision was not made in BM's best interests.
The Tribunal made mention of the requirement of s 14(2)(c), observing that the making of the guardianship order would not impact on BM's cultural or linguistic environment. Nothing turns on this matter.
It then addressed the matter in s 14(2)(d) as to the practicability of services being provided to BM without the need for making a guardianship order. Under this heading the Tribunal dealt with evidence of an episode of bleeding. It was this episode that led to BM's being admitted to hospital on 15 July 2011. The plaintiff says that the Tribunal gave inadequate reasons for its conclusions on this question and that it erred in the way it dealt with this matter. I will return to those submissions in due course.
The Tribunal then addressed the matters that, first, BM had been moved from the Manly Vale nursing home to a nursing home at Lansdowne Gardens where her weight had improved such that she now had a good appetite and was maintaining a good weight. It then addressed the position of the parties in relation to the move to Lansdowne Gardens and stated that the plaintiff had resisted the move, saying through her solicitors that the question was whether her mother would suffer a downturn in her psycho-social state as a result of a transfer to another facility. But the Tribunal observed that the transfer had been a successful one.
Next the Tribunal addressed an issue concerning the removal of a Norspan patch from BM. It recorded that the plaintiff had disagreed with the proposal for removal of the patch, stating that her mother was still in pain. The Tribunal's ultimate conclusion in this respect was that there was not a proper objective basis for that view. The patch was removed, and in retrospect it could be seen that this was in BM's best interests.
Next it addressed an issue concerning the use of a wheelchair. The Tribunal accepted that the plaintiff had insisted that BM be placed in a wheelchair with a footplate instead of a "fallout chair" and that as a result, BM had suffered minor injuries. It accepted that the plaintiff's motives for wanting her mother in a wheelchair were to allow her more mobility and thus improve her quality of life, but said that, given the injuries that were suffered, it was clear that the use of the wheelchair was not in BM's best interests.
Having regard to these conclusions and also the conclusion which it reached in relation to the episode concerning bleeding, to which I will come in due course, the Tribunal concluded that some of the decisions made for BM by the plaintiff caused BM, at the very least, unnecessary discomfort and were not in her best interests. It said that, considered individually, these decisions could be seen as simply an error of judgment, but considered together, it concluded that they established a pattern of poor or delayed decision-making. The Tribunal found that it was likely that the plaintiff would continue to make decisions which were not in her mother's best interests if she were to be her mother's substitute decision-maker.
The Tribunal then went on to consider a question as to whether there was a conflict of financial interest. It is submitted for the plaintiff that the Tribunal erred and erred on a matter of law in relation to this question. I deal with this later in these reasons. The Tribunal's conclusions in regard to a conflict of interest was that there was a clear conflict of financial interest between the plaintiff and BM, and in the Tribunal's view in the circumstances of this case there was a need for a guardianship order.
Having regard to its earlier conclusions that it was likely that the plaintiff would continue to make decisions which were not in BM's best interests if she were to be her mother's substituted decision-maker, it is clear that the findings of a conflict of financial interest were not the only basis on which the Tribunal concluded that there was a need for a guardianship order.
The Tribunal then addressed issues relating to the suitability of the first and second defendants to be appointed as joint guardians of BM. It concluded that they had personalities that were generally compatible with BM, did not have any real conflict of interest, were willing and able to exercise the role and functions of a guardian, and that it was in BM's best interests that they be appointed as her joint guardians.
The plaintiff contended that in reaching its decision, the Tribunal made three errors of law. The first was that, contrary to s 14(2)(a)(i) of the Guardianship Act, it failed to have regard to the views of BM herself, evidenced by the appointment of the plaintiff as her enduring guardian on 20 September 2004 and as set out in the statutory declaration dated 24 June 2005. Framed as a question of law, the question is whether the Tribunal applied s 14(2)(a)(i) in coming to its decision.
The second alleged error of law was that the Tribunal is said to have failed to provide adequate reasons as to why it preferred the evidence of the second defendant over the evidence of the plaintiff with respect to BM's "first bleed" on 15 July 2011. Framed as a question, the question is whether the Tribunal provided adequate reasons for such findings.
The third alleged error of law is that when considering the question of whether the plaintiff had a conflict of financial interest with BM, the Tribunal applied what was called the "incorrect threshold". As I understood the submission, it was that in considering the relevance of a conflict of financial interest, the Tribunal would have to have found that there was an "undue conflict" before taking that into account in deciding that a guardianship order was required and that the plaintiff should not remain as BM's guardian pursuant to the appointment of 20 September 2004.
Counsel submitted that this alleged error could be framed as a question of law that when considering other matters relevant to whether the guardianship order should be made, in particular an alleged conflict of financial interest, whether the Tribunal must apply a consistent threshold or standard, as appears in other sections, in particular s 17.
The plaintiff also submitted that the Tribunal made erroneous findings of fact in relation to the same subject matters, which warranted a grant of leave.
I turn first to the alleged failure of the Tribunal to comply with s 14(2)(a)(i). It is a mandatory requirement that the Tribunal have regard to the views of the affected person in considering whether or not to make a guardianship order in respect of the person. The Tribunal said under this heading:
"[BM] was unable to attend the hearing or talk to the Tribunal to present her views because of her disabilities."
This was said to be an error because, so it was said, BM had expressed her views on matters relevant to whether the guardianship order should be made in the instrument appointing the plaintiff as enduring guardian and in the statutory declaration.
This submission assumes that the views that the Tribunal is required to take into account under s 14(2)(a)(i) are not only current views, but the previously expressed views of the affected person. It also assumes that the views that the Tribunal is required to take into account are not only views as to whether a guardianship order should be made, but views on matters relevant to whether a guardianship order should be made. I say that because neither in the instrument appointing the plaintiff as enduring guardian, nor in the statutory declaration, did BM express any view as to whether a guardianship order should be made. That question had not arisen at those times.
However, I do accept that the content of those instruments made by BM was relevant to whether or not a guardianship order should be made.
It is unnecessary in these reasons to decide the scope of the obligation of the Tribunal under s 14(2)(a)(i) because it is clear that the Tribunal did have regard to what BM had said in both the instrument appointing the plaintiff as her enduring guardian and in the statutory declaration. The fact that it did not refer to those instruments under the heading "The views of [BM]" does not mean that it failed to have regard to the views expressed in those documents.
In the very next paragraph of its reasons the Tribunal referred to the submission made by the plaintiff that it was in her mother's best interests that no guardianship order be made because she was able to make the necessary decisions as her mother's enduring guardian. The Tribunal recorded the submission of the plaintiff that "[BM] chose her over her sisters as the decision-maker as she was close to and supportive of her mother and this was in contrast with [BM's] relationship with [the first and second defendants]". This was in the context of the Tribunal's referring to the plaintiff's appointment as enduring guardian.
The Tribunal also referred in some detail to the statutory declaration. The Tribunal did not accept the contents of the statutory declaration as being reliable or conclusive because it said that it was not consistent with other evidence. It also said that the statutory declaration had been made for a different purpose some seven years ago.
In my view it is clear that the Tribunal did have regard to the expression of BM's views in the two documents in reaching its decision as to the need for a guardianship order. It could hardly have failed to do so as the principal issue it had to decide was whether or not a guardianship order should be made notwithstanding the appointment of the plaintiff as BM's enduring guardian.
In my view, there was neither error of law nor error of fact in this part of the Tribunal's reasons.
The next alleged error of law was failure to provide adequate reasons with respect to BM's "first bleed" on 15 July 2011.
The Tribunal recorded evidence given by the plaintiff that around 1.00 am on 15 July 2011 BM woke and was bleeding. The plaintiff said that there was a bloodstain on the sheet which was about the size of a bread and butter plate and that after she changed the sheet she attempted to call a Dr Marcus. This was at about 1.30am. When the call rang out she redialled and the call again rang out. The plaintiff said that BM was then coherent and her normal self and said that she did not want to go to the hospital. The plaintiff acquiesced.
The plaintiff gave evidence to the Tribunal that she thought the bleed was probably the result of a vaginal polyp which BM had had some six or seven years ago before which was treated on a non-emergency basis.
The plaintiff's evidence was that BM went back to bed but at about 1.30 pm, after she heard her mother trying to flush the toilet, she found a significant amount of blood and then called the ambulance. BM was then admitted to Manly Hospital.
The Tribunal found that what the plaintiff had called a "first bleed" involved a significant amount of blood and that the plaintiff had sought to minimise the seriousness of the event at the hearing. It reached that finding on two bases. First, it said that it accepted the evidence of the second defendant as to what she had been told on 15 July by the plaintiff concerning the loss of blood. The second defendant had said in her statement that she was contacted by the plaintiff at about 10 o'clock at night on 15 July who told her in substance that at about 1 o'clock in the morning, after her mother had wet herself, that there was blood everywhere. The second defendant gave other details about BM's condition at the time that she said had been conveyed to her by the plaintiff to which it is unnecessary to refer in these reasons, but is inconsistent with the plaintiff's version of events as to what had happened in the early hours of the morning of 15 July 2011.
Thus, one reason for the Tribunal's rejecting the plaintiff's evidence as to what had happened in the early hours of the morning on 15 July 2011 was that it found that the plaintiff had made an inconsistent statement about that to the second defendant.
The plaintiff had given evidence to the Tribunal that she tried to ring Dr Marcus at between 1.30 and 2 o'clock in the morning and she was asked what was her thinking about the issue then, and why did she then ring Dr Marcus. The plaintiff answered:
"Just to see if I should do something with mum, you know, do something.
MEMBER: Such as?
PLAINTIFF: Ring an ambulance."
Later she confirmed that she rang Dr Marcus at around 1.30 am to see if she should ring for an ambulance.
The Tribunal gave as its further reasons for rejecting the plaintiff's evidence as to the extent of blood loss in the morning of 15 July that the plaintiff had considered the blood loss to be sufficiently significant to have called the general practitioner at about 1.30am. The Tribunal said also that its finding was consistent with the plaintiff's "conclusion that her mother should go to hospital." The Tribunal took the view that despite BM's objection, the plaintiff should have called an ambulance at that time as BM had significant bleeding from an unknown cause and was not capable of making her own decision about her welfare.
The Tribunal referred to medical evidence that BM suffered an acute cerebral dysfunction and damage resulting from acute blood loss she suffered at the time of her admission to Manly Hospital. If the blood loss occurred in the early hours of the morning as the Tribunal found it did, then its conclusion that the plaintiff had erred in her assessment as to the need for medical intervention would be unimpeachable. The attack on the finding was as to the Tribunal's conclusion that the blood loss occurred in the early hours of the morning rather than in the afternoon as the plaintiff said in her evidence to the Tribunal. But the Tribunal gave entirely adequate reasons for rejecting that part of the plaintiff's evidence.
The extent to which the Tribunal is required to give reasons for its decisions depends upon the particular circumstances of the matter that the Tribunal is considering (Mifsud v Campbell (1991) 21 NSWLR 725 at 728; and see the citation of authority in SAS Realty Developments Pty Ltd v Kerr [2013] NSWCA 56 at [104]-[106]). In my view the reasoning of the Tribunal on this issue is clear and adequate. It is not clear to me in what respects the reasoning could be said to be insufficient.
If the contention is that the Tribunal reached a wrong finding of fact, that would not involve any error of law. Nor having regard to the care with which the Tribunal dealt with the issue would it warrant a grant of leave for the matter to be reconsidered.
The third alleged error of law concerns the finding of the plaintiff's conflict of financial interest.
The Tribunal referred to allegations of misappropriation of BM's assets by the plaintiff and noted that these allegations had been referred to the New South Wales Trustee and Guardian's legal services section for investigation. It was concerned as to alleged misappropriations of BM's assets that led the Tribunal to appoint the NSW Trustee as BM's financial manager on 28 November 2011.
The Tribunal said:
"The Tribunal considers the existence of a conflict of financial interest a relevant consideration in deciding whether there is a need for a guardianship order."
It then dealt with the submission of counsel that no such conflict existed until the NSW Trustee decided to take action as a result of its investigation. It rejected that submission as it found that the allegations were of sufficient concern to warrant an ongoing investigation. That part of the Tribunal's reasons is not challenged.
It then dealt with the submission of counsel for the plaintiff that it was and remained the plaintiff's position that once the NSW Trustee had exhausted all other financial possibilities, if there were insufficient funds to secure BM's accommodation at Lansdowne Gardens then the plaintiff would pay whatever was required. The Tribunal said that this did not detract from its finding that a conflict of financial interest exists and concluded:
"There is a clear conflict of financial interest between the person appointed under the Enduring guardianship instrument and [BM] and the Tribunal's view is, in the circumstances of this case there is a need for a guardianship order."
Counsel said that this was to apply the wrong test and that before the Tribunal could find a guardianship order was required by reason of a conflict of financial interest, it would have to find that the conflict was "undue". This alleged standard or threshold is said to be based upon s 17 of the Act. It relevantly provides:
"17 Guardians
(1) A person shall not be appointed as the guardian of a person under guardianship unless the Tribunal is satisfied that:
...
(b) there is no undue conflict between the interests (particularly, the financial interests) of the proposed guardian and those of the person under guardianship, ..."
I do not accept that submission. Section 17(1)(b) precludes the Tribunal from appointing a person as guardian unless it is satisfied that no undue conflict of interests between the proposed guardian and the affected person exists.
I accept that it follows that the Tribunal is not precluded from appointing a person as guardian if it considers that, although a conflict exists, the conflict is not "undue". But the question of whether the Tribunal is precluded from appointing a person as guardian is not the same as the question whether the Tribunal considers that a guardianship order should be made.
In my view, the Tribunal is entitled to have regard to a conflict, whether undue or not, between the interests of the protected person and a person who is acting in the role of guardian in deciding whether a guardianship order should be made.
There is no inconsistency between the course the Tribunal took and the requirements of s 17.
Nor do I accept the submission that the plaintiff's offer to fund the bond required for BM's accommodation in Lansdowne Gardens removed the issue of a conflict of financial interest as having any relevance to the making of a guardianship order.
The Tribunal found that the allegations of financial misappropriation were not vexatious and were of sufficient concern to warrant an ongoing investigation. It referred to the reasons for decision of the Tribunal of 28 November 2011, in which the Tribunal, in dealing with the application for the financial management order, dealt with shareholdings of BM. In its reasons of 28 November 2011 the Tribunal referred to the transfer of shares from BM to the plaintiff and stated that it had not been given a full list of either the plaintiff's shareholdings or BM's shareholdings and could not therefore determine the value of the shares transferred. It said that it was not in dispute that the share transfers amounted to a significant proportion of BM's shareholdings. It recorded that in response to a question about what assets BM currently owned, the plaintiff had replied that she did not really know, but thought that her mother might have about $1 million worth of shares. The Tribunal then recorded:
"The Tribunal asked [the plaintiff] whether any shares had been transferred since July 2011 and she replied that they had not."
In its reasons of 25 July 2012 the Tribunal referred to a report by the NSW Trustee that a substantial number of listed shares had been transferred to the plaintiff from BM on 21 November 2011. The Tribunal said that the NSW trustee had sought an explanation from the plaintiff's lawyers who informed it that the shares had not been transferred, but that the plaintiff had changed the reference numbers on the shares to "secure" them.
It appeared that the plaintiff gave evidence to the Tribunal to the effect that she took this step because she considered that her sisters had removed financial records. The Tribunal did not make any findings as to whether the plaintiff had improperly dealt with BM's assets, but it said that the conflict of financial interest arising from the allegations of misappropriation, were such as supported the need for a guardianship order. I do not think that this was an error in deciding whether it was appropriate and in BM's interests that the plaintiff continue as BM's guardian. The Tribunal was entitled to take into account the question as to whether there were reasons for concern as to not only the competence of the plaintiff in looking after BM's interests, but also her character.
For these reasons I do not consider that any of the alleged errors of law have been established. Nor would the matters raised for the plaintiff justify the grant of leave. Indeed, I see no error in the Tribunal's reasoning.
However, even if I am wrong in that conclusion, it does not follow that the orders of the Tribunal should be set aside. Independently of the grounds for the Tribunal's decision that were attacked, the Tribunal made findings which would themselves support the orders that were made. Had I accepted the plaintiff's submissions as to error, I would have had to then consider what, if any, order was appropriate to be made in accordance with s 67(3). As the Tribunal's orders would in any event be justified by the part of the reasoning which was not challenged, it would not have been appropriate to set aside those orders, even had the grounds for challenge been established.
For these reasons I order that the amended summons be dismissed. I will hear the parties on costs.
[Parties addressed on costs.]
I order that the plaintiff pay the defendants' costs.
Decision last updated: 26 March 2013
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