SG v AG
[2008] WASC 123
•9 JULY 2008
SG -v- AG [2008] WASC 123
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASC 123 | |
| Case No: | GDA:9/2007 | 4 APRIL & 1 MAY 2008 | |
| Coram: | TEMPLEMAN J | 9/07/08 | |
| 52 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | SG CG AG |
Catchwords: | Guardianship Appeal by donee against revocation of power of attorney and appointment of administrator Donor's aneurism and declining mental capacity Extent of medical evidence of donor's capacity Whether longterm relationship between donor and donee a relevant consideration Complexity of estate Reduction of donor's estate and enlargement of donee's estate Tax 'minimising' purposes Donee's conflict between interest and duty Hearing submissions and evidence when findings inevitable Necessity for investigation in donor's interests Accidental slip in Tribunal orders Whether inconsistency between Tribunal's oral and written reasons |
Legislation: | Guardianship and Administration Act 1990 (WA), s 4, s 29, s 30(1)(a), s 42, s 64, s 108(1a) State Administrative Tribunal Act 2004 (WA), s 78, s 83(1) |
Case References: | Briginshaw v Briginshaw (1938) 60 CLR 336 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 127 ALR 699 Dovuro Pty Ltd v Wilkins (2003) 201 ALR 139 Edna May Collins by her next friend, Glenys Lesley Laraine Poletti v May [2000] WASC 29 G v K [2007] WASC 319 Gibbons v Wright (1954) 91 CLR 423 O'Brien v Komesaroff (1982) 41 ALR 255 PT Ltd v Maradona Pty Ltd (1992) 25 NSWLR 643 SG [2007] WASAT 269 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- First Appellant
CG
Second Appellant
AND
AG
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram : MS F CHILD (MEMBER)
- MR J MANSVELD (MEMBER)
DR A MCCUTCHEON (SENIOR SESSIONAL MEMBER)
Citation : SG [2007] WASAT 269
File No : GAA 61 of 2007
(Page 2)
Catchwords:
Guardianship - Appeal by donee against revocation of power of attorney and appointment of administrator - Donor's aneurism and declining mental capacity - Extent of medical evidence of donor's capacity - Whether longterm relationship between donor and donee a relevant consideration - Complexity of estate - Reduction of donor's estate and enlargement of donee's estate - Tax 'minimising' purposes - Donee's conflict between interest and duty - Hearing submissions and evidence when findings inevitable - Necessity for investigation in donor's interests - Accidental slip in Tribunal orders - Whether inconsistency between Tribunal's oral and written reasons
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 29, s 30(1)(a), s 42, s 64, s 108(1a)
State Administrative Tribunal Act 2004 (WA), s 78, s 83(1)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
First Appellant : Mr L A Tsaknis
Second Appellant : Mr L A Tsaknis
Respondent : Mr H O Moser
Solicitors:
First Appellant : Cocks Macnish
Second Appellant : Cocks Macnish
Respondent : Robertson Hayles
(Page 3)
Case(s) referred to in judgment(s):
Briginshaw v Briginshaw (1938) 60 CLR 336
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 127 ALR 699
Dovuro Pty Ltd v Wilkins (2003) 201 ALR 139
Edna May Collins by her next friend, Glenys Lesley Laraine Poletti v May [2000] WASC 29
G v K [2007] WASC 319
Gibbons v Wright (1954) 91 CLR 423
O'Brien v Komesaroff (1982) 41 ALR 255
PT Ltd v Maradona Pty Ltd (1992) 25 NSWLR 643
SG [2007] WASAT 269
(Page 4)
1 TEMPLEMAN J: This is an appeal brought under s 105 of the State Administrative Tribunal Act 2004 (WA) (the SAT Act) against a decision made by the State Administrative Tribunal (the Tribunal) under s 64 of the Guardianship and Administration Act 1990 (WA) (the Guardianship Act).
2 The Tribunal declared that the first appellant was unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate. The Tribunal appointed the Public Trustee to be the plenary administrator of the first appellant's estate. Further, the Tribunal revoked an enduring power of attorney by which the first appellant had appointed his wife, the second appellant, to be his attorney.
3 The orders were made on an application for the appointment of an administrator brought by the first appellant's daughter, who is the present respondent.
4 The first appellant now acts by his next friend, Mr G, who is his son-in-law.
5 Schedule 1 of the Guardianship Act contains provisions limiting the publication of proceedings. These provisions are intended to preserve the privacy of persons involved in proceedings of this kind: sch 1, pt B, cl 12.
6 To ensure compliance with those provisions, I will refer to the parties as appellants and respondent respectively (even though that was not their status before the Tribunal) and to witnesses (including the authors of medical reports) by initials.
Background
7 The background to the matter is set out in the Tribunal's written reasons for decision, delivered on 17 October 2007 in SG [2007] WASAT 269.
8 In summary, the first appellant, who was then 79 years of age, is a highly educated professional man. Although a resident of Australia, the first appellant has substantial property and business interests in another country, to which I shall refer as 'overseas'.
9 In October 2005, the first appellant suffered a brain aneurism, which required surgery. Until then, the first appellant practised his profession and travelled frequently.
(Page 5)
10 The second appellant is the first appellant's wife. They were married in August 2006 following a long-term relationship. The parties are agreed that the relationship dated from at least the 1980s. The respondent is the first appellant's daughter by his previous marriage. Neither she, nor the first appellant's extended family were told about the marriage. They learned of it only in the course of the hearing before the Tribunal.
11 The first appellant and his former wife were divorced in 1998. However, the parties are agreed that the first appellant maintained regular - often daily - telephone contact with his former wife until after his operation in October 2005.
12 In November 2006, the first appellant executed an enduring power of attorney by which he appointed the second appellant as his attorney. The document was witnessed by a solicitor and a civil marriage celebrant. It appears that the respondent did not become aware of the enduring power of attorney until after she made her application to the Tribunal. One of the questions asked in the application form was whether the person concerned had signed an enduring power of attorney. The respondent answered 'no'.
13 The respondent is the only issue of the marriage of the first appellant and his former wife. The first appellant has a number of grandchildren and a great-grandchild. His extended family lives largely overseas.
The application to the Tribunal
14 The respondent made her application to the Tribunal by completing its standard form and sending it under cover of a letter dated 5 January 2007 written by her solicitors (AB 1 - 24).
15 In her application, the respondent said she had noticed 'a significant deterioration in [the first appellant's] ability to make decisions and he appears to suffer memory loss'. As a result, the respondent said the first appellant had
become almost completely reliant on [the second appellant] who has restricted mine and my mother's access to my father. There have been sale or transfers of properties benefiting [the second appellant] at the expense of my father.
16 In answer to the question 'Why does the person need an administrator?', the respondent answered:
(Page 6)
- My father may no longer have the ability to make decisions and [the second appellant] who now controls his estate has a conflict of interest and had [sic] already acted in favour of herself and to his detriment by selling properties or transferring properties into her name.
17 In answer to the question 'What attempts have been made to solve the issues less formally?', the respondent answered:
I tried to discuss my concerns with my father. It has resulted in [the second appellant] hindering further access to him.
18 The solicitors' letter accompanying the respondent's application referred to various property transactions identified by relevant title searches.
19 The solicitors said that the first appellant had been the owner of a residential property in Dalkeith which would have had a value of approximately $2 million. This property was sold 'some time in the middle of 2006'. At about that time, a property in Crawley was registered in the names of the first and second appellants as joint tenants. The solicitors suggested that the transaction appeared to benefit the second appellant to the detriment of the first appellant.
20 The solicitors said they had been informed by the respondent that her father used to be 'very protective of his assets'. That being so, the respondent was concerned that her father appeared to be acting to his detriment and in favour of the second appellant in a way which was out of character.
21 However, the solicitors referred also to transfers of the first appellant's properties to the second appellant and to himself and the second appellant as joint tenants, in 2000, 2004 and 2005, when there could have been no doubt about the first appellant's mental capacity.
Pre-hearing investigations
22 It appears from the appeal papers that the Tribunal referred the matter to the Public Advocate who, on 12 June 2007, reported the outcome of her investigations to the Tribunal (AB 173 - 183). This included a summary of her interview with the first and second appellants and a summary of various medical reports. The Public Advocate set out also a chronology of property transactions, but commented that the full extent of the first appellant's estate, both in Western Australia and overseas, was not fully known.
(Page 7)
The hearing
23 The hearing took place over two days: 19 June and 1 August 2007. The Tribunal comprised three members, one of whom was a medical practitioner.
24 Neither of the counsel who appeared on the morning of the appeal was involved in the hearing before the Tribunal. The first and second appellants were then represented by other counsel: and the respondent was represented by her solicitor.
25 It appears from the transcript that on the first day of the hearing, the Tribunal expressed the preliminary view that, based on the medical reports, the first appellant was 'a person for whom an administration order could be made' (AB 195 and AB 198).
26 Counsel for the appellants did not challenge the medical evidence. However, he submitted that the medical evidence should be considered 'in the light of [the first appellant's] circumstances' (AB 199).
27 In essence, the submission was that the first appellant's affairs were not complex and that he was capable of managing them, despite the deterioration in his mental condition since October 2005, when he suffered the aneurism.
28 The Tribunal then heard submissions from the respondent's solicitor about the first appellant's financial affairs, past and present. These submissions were based on materials which had been provided to the Tribunal in advance of the hearing by the appellants' solicitor.
29 The hearing was adjourned because the Tribunal accepted the recommendation of the Public Advocate (who was present at the hearing) that further information should be obtained as to the first appellant's overseas assets, including the identity of a person who was said to be holding some $3.5 million overseas for the purpose of enabling the appellants to minimise their liability to Australian income tax.
30 The Tribunal resumed the hearing on 7 August 2007. The presiding member opened the substantive part of the hearing by re-stating the Tribunal's preliminary view, based on the medical evidence, 'that there was an incapacity and that leads us to the issue of need' (AB 394). The presiding member then referred to the submissions which had been made previously by counsel for the first appellant:
(Page 8)
- That there was no need because there was a relatively simple estate to be managed.
31 At that stage, in response to orders made on 19 June, the appellants' solicitor had provided to the Tribunal a considerable amount of material relating to the first appellant's financial and business affairs.
32 The presiding member said that the Tribunal accepted the submissions by the first appellant's counsel:
That the question of capacity and need, need to be understood in the context of the estate to be managed. (AB 395)
33 The presiding member then outlined the first appellant's financial position and referred to some of the points raised in the list of issues prepared by the Tribunal for use at the resumed hearing (exhibit 1):
• Capacity: Presumption of Capacity s4(2)(b)-there must be evidence of a loss of capacity which rebuts the presumption.
• Is the proposed represented person unable to manage his financial affairs within the meaning of s64(1)?
• What are the financial affairs of the proposed represented person which require management or decisions to be made?
• Does the Enduring Power of Attorney executed on 10 November 2006 provide a less restrictive means of managing the affairs of the represented person than a formal order, or
• Does the represented person need an administrator of his estate?
• If the answer to the last question is yes, then who should that be?
34 Counsel for the first appellant then called two witnesses. The presiding member then asked a number of questions of counsel as to financial matters, following which, counsel and the Public Advocate made submissions.
35 At the conclusion of the proceedings, the presiding member gave an ex tempore judgment, following which the Tribunal declared that the first appellant was unable by reason of mental disability, to make reasonable judgment in respect of matters relating to all of his estate and that he was in need of an administrator of his estate. The Tribunal appointed the Public Trustee as plenary administrator of the first appellant's estate. The Public Trustee was directed to:
(Page 9)
- [A]scertain the nature and extent of, and dealings with, the estate of [the first appellant] between 1 October 2005 and the date of this order and take whatever action he considers appropriate and in the best interests of the [first appellant].
36 On 28 August 2007, the Tribunal, of its own motion, amended the earlier order by adding a further order revoking the enduring power of attorney dated 10 November 2006.
37 The order was to be reviewed by 7 August 2009.
The appeal
38 The appeal is brought under div 3 of the Guardianship Act. That is so, despite the fact that the SAT Act has its own appeal provisions: G v K [2007] WASC 319 [8]. This is because the Parliament accepted the submission made by the then Chief Justice to the effect that the Supreme Court should retain its direct supervision of the Tribunal when dealing with matters arising under the Guardianship Act, in the exercise of part of the Supreme Court's inherent jurisdiction.
39 This result was achieved by s 466(1) of the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA) which preserved the appeal provisions of the Guardianship Act by replacing references to the Guardianship and Administration Board with references to the Tribunal.
40 Where, as here, the Tribunal is constituted by three members not including the President, an appeal lies to a single judge of this court, by leave: s 19(a).
41 An application for leave to appeal may be made by any party who is aggrieved by the Tribunal's determination and is to be made ex parte unless the judge orders that the application be served on any person: s 20(2).
42 In the present case, the application was made ex parte, together with an application for an extension of time in which to institute it, under s 20(4).
43 By s 21, an application for leave to appeal may be made only on one or more of the grounds there set out. They are:
(a) that the State Administrative Tribunal:
(i) made an error of law or fact, or of both law and fact; or
- (ii) acted without or in excess of jurisdiction,
or did both of those things; or
- (b) that there is some other reason that is sufficient to justify a review of the determination.
44 By s 22, leave is only to be granted if it is shown to the satisfaction of the judge that there is a prima facie case justifying an appeal on one or more of the grounds set out above.
45 The application for leave to appeal and for the extension of time in which to do so was referred to me. I made orders extending time and granting leave to appeal on the papers, being satisfied that there was a prima facie case on the grounds then proposed.
46 There are 20 grounds of appeal. However, grounds 2 to 20 inclusive are, in substance, particulars of ground 1 which contains the substantive grounds (a) to (d). I deal with them in the following way.
Grounds 1(a) and (b), 2 and 3
1. The Tribunal erred in fact and in law, or acted without or in excess of jurisdiction or both, or alternatively there is some other reason sufficient to justify a review of its determination that:
(a) the presumption that the First Appellant was capable of making reasonable judgments in respect of matters relating to his estate had been displaced;
(b) the First Appellant was unable by reason of mental disability of making reasonable judgments in respect of matters relating to all of his estate and was in need of an administrator.
2. The Tribunal erred in fact and in law in relying on the evidence of Dr G, Ms S and Ms E, since no evidence was adduced as to the expertise of any of Dr G, Ms S and Ms E in regard to their respective ability to determine whether or not the First Appellant was capable of making reasonable judgments in respect of matters relating to his estate.
(Page 11)
- 3. The Tribunal erred in fact and in law in holding that each of Dr G, Ms S and Ms E had 'specialist experience in assessment of persons with cognitive impairments', since no evidence was adduced in regard to the experience or expertise of any of Dr G, Ms S or Ms E.
48 The starting point for the consideration of these grounds is s 4(1) of the Guardianship Act which requires the Tribunal, when dealing with proceedings commenced under the Act, to observe the principles set out in s 4(2). These include the presumption in s 4(2)(b) that every person shall be capable of:
(i) looking after his own health and safety;
(ii) making reasonable judgments in respect of matters relating to his person;
(iii) managing his own affairs; and
(iv) making reasonable judgments in respect of matters relating to his estate,
- until the contrary is proved to the satisfaction of the Tribunal.
The medical evidence
49 The medical evidence before the Tribunal consisted of a number of reports, including those submitted on the Tribunal's standard form 'Doctor's Guide'.
50 In chronological order the reports were as follows:
Dr G's report dated 21 February 2006 (AB 29)
51 As appears from his letterhead, Dr G is a consultant at the Memory Clinic which is part of the Gairdner Geriatric Teaching Unit of the Sir Charles Gairdner Hospital.
52 In a letter dated 21 February 2006 to the respondent's solicitors, Dr G said that he had made an appointment to assess the first appellant's testamentary capacity to give an enduring power of attorney. Dr G said the first appellant did not attend. Dr G went on to say:
On my previous assessments of [the first appellant] including his in-hospital stay, he made it extremely clear on many occasions that he does not wish to sign an Enduring Power of Attorney. Unless this has changed assessing his capacity to do so therefore seems of little value. If there are concerns from the family about a need to pursue a Guardianship
(Page 12)
- & Administration Order to manage his affairs, then this obviously is a separate matter and would need specific assessment regarding that.
Ms S's report dated 19 May 2006 (AB 30 - 32)
53 Although Dr G did not see the first appellant in February 2006, he referred him for 'assessment of his memory functioning' to Ms S, a clinical psychologist at Dr G's Memory Clinic.
54 Ms S reported to Dr G on 19 May 2006.
55 Ms S said that the first appellant had been assessed in the clinic on 15 May, accompanied by his wife.
56 Ms S said that the first appellant presented as a pleasant, affable man of 78 years, who was very softly spoken and at times needed prompting to respond to questions. Ms S said that the first appellant's concentration lapsed occasionally during the assessment and he lost track of the demands of the task.
57 Ms S said the first appellant denied he has major memory problems, stating that his memory was 'very good'. However, the second appellant reported 'cognitive changes' including the first appellant:
Having difficulty remembering recent events, repetitive questioning, regularly misplacing items and word-finding difficulty. Some disinhibition in speech has been noted. [The second appellant] first noticed obvious changes after her husband's operation in October 2005 but admitted gradual changes were apparent before then. [The first appellant] is not considered to have any insight into his changing capacity. [The second appellant] described her husband as a 'proud man' who was denying both physical and mental changes.
58 Ms S administered a number of tests to the first appellant. These included the Cambridge Cognitive Exam in which the results from various elements of the test are combined so as to provide a basis for assessing whether the subject is suffering from dementia. The elements of the examination include:
• orientation
• language
• memory
• attention
• praxis
(Page 13)
- • calculation
• abstract thinking
• perception
The first appellant scored 60/105, whereas the cut-off score for dementia is 79-80. In other words, a person who scores less than 79 or 80 (as the first appellant did) is likely to be suffering from dementia.
59 Ms S administered other tests, including a Mini Mental State Examination in which the first appellant scored 18/30. The cut-off score for dementia in that test is 24-25.
60 Ms S included a 'cognitive summary' in her report. She said:
Intelligence levels estimated to be in the average range premorbidly [ie before the aneurism]. There were some relative strengths on the assessment including language comprehension, recall of remote information and visual perception.
There were significant deficits in the recall of newly learned information. Performance did not improve when cues were provided. Visual recognition memory remained relatively intact. Significant disorientation to time and place was evident and recall of recent (topical) was poor. Word fluency tasks were performed below average, with [the first appellant] achieving well-below what would be expected from his NART, level of education and work history. Naming fluency was very poor with [the first appellant] often describing the object rather than naming it, which may also reflect English as a second language … [The first appellant] lost his concentration very easily during formal tasks of attention and required prompting to stay on - tasks.
61 Ms S went on to say that the first appellant's visuo-spatial organisation was below average, that there were signs of executive dysfunction; that performance of abstract reasoning was very poor and that visual reasoning was also well below average.
62 In her conclusion and recommendations, Ms S said:
There are some relative strengths which remain intact on this assessment commensurate with [the first appellant's] estimated average level of premorbid intelligence. However, there are significant deficits in his ability to recall new learning, in his organisation and recall of visuo-spatial information and in his processing speed. There are also significant losses in verbal fluency and executive function evident relative to premorbid estimates. … The profile reflects mild to moderate cognitive impairment and represents a significant decline relative to premorbid functioning. [The first appellant's] scores are currently well-below the cut-off score for
(Page 14)
- a dementia and significantly below both age-cohort comparisons and education-cohort comparisons. The decline is consistent with a global pattern at this point in time.
Dr G's report of 23 January 2007 (AB 26 - 28)
63 On 23 January 2007, Dr G completed a Doctor's Guide sent to him by the Tribunal. The Guide is on a standard form and requires the doctor to tick appropriate boxes and, in some cases, to provide comments.
64 Under the heading 'Medical assessment', Dr G said that the first appellant had cognitive impairment following the aneurism and that the impairment was static.
65 In answers to questions about capacity, Dr G said he was not sure whether the first appellant could make reasonable decisions at that date in relation to his personal healthcare. Dr G said the first appellant had not been formally assessed but 'probably not'. Dr G answered in the same way in relation to questions about the first appellant's living situation and his financial affairs.
66 In the section of the Guide directed to capacity to make an enduring power of attorney, Dr G said he was not sure whether the first appellant then had the capacity to execute a valid enduring power of attorney and that he was not sure whether the first appellant had done so.
Dr N's report of 20 February 2007 (AB 45, 45A and 46)
67 Dr N also completed a Doctor's Guide. He did so in his capacity as the first appellant's general practitioner, although he had known the first appellant only since the time when he was affected by the aneurism.
68 Dr N's medical assessment was that there was a short-term memory impairment and that no further change in the first appellant's cognitive ability was likely to occur.
69 Dr N's opinion was that the first appellant was capable of making reasonable decisions in relation to his personal healthcare, his living situation and his financial affairs. Dr N said that the opinions were based on his conversations with the first appellant 'and assessment of him'. However, I take that to be an informal assessment. There is no evidence that Dr N administered any test or conducted any examination.
(Page 15)
70 Consistently with the above opinions, Dr N considered that the first appellant was then capable of executing a valid enduring power of attorney but was not sure whether the first appellant had done so.
Dr M's report dated 2 March 2007 (AB 62)
71 Dr M is a hepatologist. He completed a Doctor's Guide on 2 March 2007.
72 In answer to the question whether the first appellant had any impairment of his cognitive ability or mental function, Dr M said he was unable to comment as he had not tested in respect of either matter. He said that Dr N or Dr G might be in a better position to comment.
73 Dr M's opinion was that the first appellant was capable of making reasonable decisions in relation to his personal healthcare, his living situation and financial affairs. He thought also that the first appellant was capable of executing a valid enduring power of attorney and was not sure whether he had done so.
Dr G's report dated 8 May 2007 (AB 74 - 75)
74 Dr G wrote a report in the form of a letter to the Tribunal on 8 May 2007, the day following the attendance on him of the first and second appellants.
75 Dr G said:
As a result of my assessment … I do not believe that [the first appellant] has the capacity to make decisions about his estate and finances, and would very seriously doubt his capacity to make ongoing decisions about his medical care.
- A little later in his report, Dr G said:
We had a fairly prolonged discussion about his estate and management of his affairs, and he had great difficulty in answering these. He could not tell me who managed his banking currently in Australia, although I understand that he has some involvement in this with the aid of his wife. He was unable to tell me who paid the bills and how this was done.
He was unable to tell me who owned his current property. When questioned about its approximate value, he estimated A$500,000; I understand that it was purchased less than 12 months ago for almost A$2 million. He was unable to tell me whether he owned other properties in Australia or overseas. In actual fact, I understand that he owns 2 properties in K… and a rental property in D…. He also owns his office in J… [overseas] and 4 properties [overseas]. He was able to recall each
- of these when reminded of them. He was unable to tell me who owns any of the above properties: whether he owns them or whether there is joint ownership. He was unable to tell me who manages the properties [overseas] in his absence. I understand that he has a secretary who manages them and pays all the bills; he was unable to tell me of this arrangement. I am not sure whether this is a formal or informal arrangement.
We discussed the guardianship and administration hearing in a few weeks' time and his wife told me that this has been discussed. He reported that his understanding is that his daughter is trying to get hold of his assets. In response to this, he replied, 'I don't like that. It's money I have earned.' He reported that she has her own finances and he sees no need for her to have input into his affairs. He is convinced that he is able to manage his own affairs, although as stated above, he can give no specific details as to how this is currently done or how it might be done in the future. He appears to have limited understanding of what the guardianship and administration hearing is about and could not volunteer any of this information to me today. When pressed, he agreed that it was to decide who would control his affairs in the future, but certainly could not offer this without prompting.
Regarding medical issues, he was unable to tell me that he had cancer of the liver. Three months ago he was admitted for treatment (transarterial chemotherapy embolisation), but was unable to give me any recollection of this. He is unable to describe any problems with his liver or his health in general and is unable to give me any description of treatment for this. He has no understanding of his current diagnosis or, more importantly, prognosis. He has no understanding of whether future treatment is required, what such treatment might involve and what his options are regarding this. He was able to tell me that he did not want to have surgery.
Throughout the interview, he looked at his wife for assistance in answering almost every question; she was very compliant in keeping out of the conversation as much as possible, allowing us to demonstrate his inability to answer most of the above questions without her input. I had no concerns during the interview that language was an issue and as stated above, all of the discussion was held in both English and [a foreign language].
Ms E's report dated 21 May 2007 (AB 76 - 78)
76 Ms E is a clinical psychologist at Dr G's Memory Clinic. In other words, a colleague of Ms S.
77 It appears that Dr G referred the first appellant to the clinic for further assessment which was carried out by Ms E. Her report dated 21 May 2007 is in the same format and follows the same pattern as that of
(Page 17)
- Ms S of 19 May 2006. Ms E conducted the same tests and reported similar results to Ms S.
78 Ms E's conclusions included the following:
The changes in memory ability and behaviour reported by [the first appellant's] family are considered to have been a sudden deterioration since his surgery for an aneurism in October 2005. [The first appellant] appears unaware of the extent of the memory changes that his family have noticed. Instrumental activities of daily living are considered by [the first appellant] to be relatively unimpaired despite these deficits, however collateral information indicates otherwise. [The first appellant] participates in no household chores, no longer drives or manages his finances, no longer reads or writes books, and does no future planning or organisation. He is attending a local day centre once week. The profile reflects moderate cognitive impairment and represents a significant decline relative to premorbid functioning. [The first appellant's] scores are currently well-below the cutoff score for a dementia and significantly below both age-cohort comparisons and education-cohort comparisons. The decline is consistent with a global pattern at this point in time.
No further review of [the first appellant's] cognitive functioning is required.
The Tribunal's preliminary view
79 No application was made on behalf of the first appellant, either before or at the hearing on 19 June 2007, to have any of the authors of the medical reports attend for the purpose of cross-examination. That being so, it is not surprising that at an early stage on the morning of 16 June, the presiding member expressed the following preliminary view:
That it was more likely than not that [the first appellant] did not have capacity, at the present time, to make reasonable judgment about his financial affairs. (AB 198)
80 Although the Tribunal did not say so expressly, the preliminary view carries with it the inference that the Tribunal accepted the expertise of Dr G, Ms S and Ms E and the validity of their respective assessments.
81 Having expressed the preliminary view, the presiding member asked the first appellant's counsel whether he had any submissions 'in relation to the conflicting evidence before us, in relation to capacity' (AB 198). I take this to be a reference to the opinions of Drs M and N to the effect that they considered the first appellant was capable of managing his financial affairs.
(Page 18)
82 Counsel replied:
I was only going to make my submissions in respect to Dr G and the two clinical psychologists. I wasn't going to rely on Dr N's comments. It's an impression and observation (indistinct) a foundation - and I appreciate, certainly, that Dr G's report is the one that's most persuasive. It's his area of expertise, so I, I intended to make my submissions based on his report and the range of financial affairs that [the first appellant] needs to make reasonable judgments on. (AB 198) (emphasis supplied)
83 Counsel then said that he was not intending to rely on Dr N 'who's butting out Dr G's opinion' (AB 199).
84 In my view the sense of that comment was that counsel referred to the fact that Dr N had said that Dr G had assessed the first appellant thereby, apparently, deferring to Dr G's opinion.
85 A little later, the first appellant's counsel said he was not conceding that the first appellant suffered from a mental disorder which necessitated the appointment of an administrator. Counsel conceded that it was Dr G's report 'that needs to be addressed', but in the light of the first appellant's circumstances (AB 199).
86 In summary, it may be said that counsel accepted the gravamen of Dr G's report, and his expertise, but did not concede that it was necessary for an administrator to be appointed, having regard to the first appellant's circumstances. The inference is that those circumstances were such that the first appellant would be able to manage his affairs despite the decline in his mental condition, following the aneurism.
The Tribunal's final view
87 Ultimately, the question for the Tribunal was whether it was satisfied, on the whole of the evidence, that the first appellant was 'unable to make reasonable judgments in respect of matters relating to his person' so as to be in need of a guardian.
88 In their written reasons, the Tribunal reviewed not only the medical evidence but also the evidence of the first appellant's accountant and a long-standing colleague of the first appellant. The Tribunal said:
The Tribunal also had written submissions and heard evidence from both the accountant of the [first appellant] who had known the [first appellant] for some 20 years and [Ms A] a colleague from overseas who worked with him for over 30 years. [The first appellant] and his spouse were not called to give direct evidence, nor was the [respondent].
(Page 19)
- The medical evidence before the Tribunal is not challenged. Counsel for the [first appellant] and the spouse does not seek to rely on the report of Dr N and concedes that Dr G's report 'is the more persuasive as [the subject-matter is [within his area of expertise]'. (AB 465)
89 Counsel for the respondent submits, and I accept, that having made the concession as to Dr G's expertise (as he did through his counsel) the first appellant is bound by it. The principle is stated by Kirby J in Dovuro Pty Ltd v Wilkins (2003) 201 ALR 139 [85] - [91]. Earlier, in O'Brien v Komesaroff (1982) 41 ALR 255, Mason J stated the principle succinctly in the following way:
[The appellants] cannot argue this point on appeal; it was not pleaded by them nor was it made an issue by the conduct of the parties at trial. (261)
90 In my view, the position is a fortiori in the present case, given that there was an interval of some seven weeks between the first and second days of the hearing before the Tribunal. Despite the fact that the Tribunal had informed the parties of its preliminary view on the first day of the hearing, nothing was done on the first appellant's behalf to obtain further medical evidence to challenge that view. On the second day of the hearing, the first appellant's counsel called only the two lay witnesses to whom the Tribunal referred in [50] of its reasons, albeit the evidence of those witnesses was said to have been directed to the first appellant's mental capacity.
91 In my view, therefore, the Tribunal was entitled to rely on the expertise of Dr G, Ms S and Ms E, and did not err in fact or in law in so doing.
Ground 4
The Tribunal erred in fact and in law in holding, on the basis of the content of Ms S's report dated 19 May 2006 or the content of Ms E's report dated 21 May 2007, that the First Appellant was incapable of making reasonable judgments in respect of matters relating to his estate, since:
(a) neither Ms S nor Ms E assessed the First Appellant in that regard;
(b) both Ms S's and Ms E's respective assessments are limited to an assessment only of the First Appellant's memory function;
(c) in providing their assessments, neither Ms S nor Ms E had regard to the transactions which the First Appellant was required to undertake.
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92 I accept that pars (a) and (c) above are factually correct. However, in my view they are not to the point.
93 As I have noted above, it was for the Tribunal to determine, on the whole of the evidence, whether the first appellant was in need of a guardian. That was the ultimate issue. The medical experts could only provide opinions as to the first appellant's mental condition. It was then for the Tribunal to resolve the ultimate issue by considering that evidence, having regard to the nature and extent of the first appellant's estate.
94 In my view, par (b) above is factually incorrect. It is clear from the reports produced by Ms S and Ms E, to which I have referred above, that they considered a number of criteria in making their assessments.
95 Counsel for the appellants was critical of the fact that Ms S and Ms E used similar formats in their respective reports. Counsel questioned whether the authors were truly independent (ts 46).
96 I see no basis in the reports of Ms E and Ms S for raising independence as an issue. I would expect practitioners in the same clinic to adopt a standard approach to their assessments. Indeed, if they did not do so, it would be difficult to determine whether a patient's condition had changed over time.
Ground 5
The Tribunal erred in fact and in law in relying on the content of Dr G's report dated 8 May 2007, in holding that the First Appellant was not capable of making reasonable judgments in respect of matters relating to his estate, since:
(a) Dr G's assessment was limited to an assessment of the First Appellant's memory function;
(b) there was no evidence that Dr G had an accurate knowledge of the First Appellant's financial affairs, that the matters put to the First Appellant by Dr G represented the First Appellant's assets or arrangements or that the First Appellant was required to undertake any of the matters put to him;
(c) the Tribunal erred in holding that because Dr G undertook a 'formal assessment' of the First Appellant, that assessment was sufficient to establish that the First Appellant was suffering from a cognitive impairment;
(d) Dr G's report concluded that he was unable to demonstrate that the First Appellant had the capacity for management of his lifestyle
- and financial affairs (which affairs were not stated), which conclusion was insufficient to overcome the presumption in s 4(2)(b)(iii) of the Act that the First Appellant was presumed to be capable of managing his own affairs.
97 As to (a) above, it is incorrect to say that Dr G's assessment was limited to the first appellant's memory function. It is clear from Dr G's report of 8 May 2007, to which I have referred extensively above, that his examination was far more comprehensive. Dr G questioned the first appellant about the nature, extent and management of his estate and about his understanding of his medical condition and the pending application before the Tribunal.
98 As to (b) above, I accept that Dr G's statement:
I cannot demonstrate that [the first appellant] has capacity for management of his financial and lifestyle affairs
- suggests that Dr G did not have full knowledge of the first appellant's financial affairs. However, as I have noted above, in relation to Ms E and Ms S, it was not necessary for Dr G to have that knowledge in order to assess the first appellant's mental condition.
99 The Tribunal accepted, in the course of the hearing, that the need for an administrator must be determined in the light of the estate of the person concerned. This view is reflected in the Tribunal's reasons at [82] and [83]. The Tribunal there said:
In response to the assertion of the need for an administrator, counsel for the represented person and his spouse maintains that the arrangements for the management of the estate are relatively simple, that the financial transactions are not markedly different to that undertaken by the represented person prior to his illness and that the arrangements for the holding of property with his spouse are not substantially different to the arrangements in place prior to their marriage and with his former spouse.
The submission of counsel for the represented person and the spouse is that the capacity of the represented person and the need for an administrator must be understood by reference to the range of financial affairs about which the represented person is required to make reasonable judgments. Counsel referred to Collins v May (above) to illustrate the point that capacity is assessed in the context of the nature of the estate and the transactions to be undertaken (T:40).
100 The reference to Collins v May is to Edna May Collins by her next friend, Glenys Lesley Laraine Poletti v May [2000] WASC 29.
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101 The Tribunal went on to refer to the evidence about the first appellant's estate (at [84] - [92]). The Tribunal did not, therefore, reach its conclusion that the first appellant was in need of a guardian, simply on the basis of Dr G's limited knowledge about his estate.
102 Paragraph (c) above is a reference to [92] of the Tribunal's reasons. The Tribunal there said:
In respect of the evidence relating to the capacity of the represented person, we are satisfied, based on the medical evidence, that he is not capable of making reasonable judgments about any or all of his estate. In this regard, we rely on the evidence of Dr G, the geriatrician, and that of the clinical psychologists Ms E and Ms S who formally assessed the represented person's cognitive functioning. Each of these professionals has specialist experience in assessment of persons with cognitive impairments. We prefer this evidence to that of Dr N and Dr M where there is any inconsistency.
103 In my view, it is clear from the punctuation of the second sentence above, that the Tribunal relied on the evidence of Dr G and on the evidence of Ms E and Ms S who 'formally assessed' the first appellant's cognitive functioning. I take the formal assessments to have been the tests they administered.
104 Put another way, the Tribunal did not say that Dr G had carried out a formal assessment of the first appellant's cognitive function. However, it is clear that Dr G did assess the first appellant's cognitive function (although that was not an expression he used). Dr G did so in the way he described in his report of 8 May 2007: by questioning the first appellant about matters including the nature, extent and management of his estate.
105 As to par (d) above: I accept that Dr G's statement that he was unable to demonstrate that the first appellant had capacity to manage his financial and lifestyle affairs was not, of itself, sufficient to rebut the presumption in s 4(2)(b)(iii) of the Guardianship Act. However, that was not the Tribunal's finding. The Tribunal's conclusion, as set out in [96] of its reasons was:
In respect of the need for an administrator, when considered in its entirety we conclude that the represented person's estate is large and complex and that the decisions required for its management are now beyond him given his diagnosis of cognitive impairment and the consequences which flow from that diagnosis.
106 In my view, this demonstrates that the Tribunal considered the need for an administrator in the context of the nature of the first appellant's
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- estate, and in the light of the 'diagnosis of cognitive impairment'. That was an expression used by the Tribunal to summarise its findings based on the medical evidence. In my view, it was an accurate summary.
Ground 6
The Tribunal erred in fact and in law in rejecting the evidence of Dr N, Dr M, Mr E and Ms A, who had known the First Appellant for many years, on the basis that their contact had been infrequent, preferring instead to rely on the medical evidence 'and the inferences which may be drawn from that evidence' when:
(a) there was no proper or sufficient basis for the Tribunal to reject the evidence of each of Dr N, Dr M, Mr E and Ms A;
(b) Ms A had contact with the First Appellant over a considerable number of years prior to October 2005;
(c) each of Dr N, Dr M, Mr E and Ms A had contact with the Fist Appellant after October 2005;
(d) the duration and nature of the personal contact between Dr N and the First Appellant was no different to the duration and nature of the contact between Dr G and the First Appellant;
(e) the inferences which the Tribunal drew from the medical evidence which was relied on by the Tribunal, to prefer the evidence of Dr G as well as Ms S and Ms E to Dr N, Dr M, Mr E and Ms A, were not stated.
107 As to (a) above: I have referred above to the report dated 14 February 2007 of Dr N, who is the first appellant's general practitioner. Dr N conducted a Mini Mental State Examination on 13 February 2007, which showed 'moderate cognitive impairment'. Despite that, Dr N was of the view that the first appellant was 'able to make reasoned judgements regarding his affairs'. Dr N said the statement was based on his discussions with the first appellant 'over many consultations over the last year' (AB 59).
108 However, the nature and extent of Dr N's discussions are not stated: and Dr N himself said that Dr G 'would be in best position to assess [the first appellant's] cognitive function' (AB 58).
109 That being so, I consider that it was not only open to the Tribunal to prefer the evidence of Dr G over that of Dr N, but appropriate to do so.
110 Dr M is a hepatologist: a specialist in liver function. In the Doctor's Guide he completed on 2 March 2007, Dr M expressed the view that the
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- first appellant was capable of making reasonable decisions in relation to his financial affairs. However, that view must be regarded as being qualified by the fact that in response to the question whether the first appellant had any impairment of his cognitive ability or mental function, Dr M said he was unable to comment because he had tested neither (AB 62).
111 Further, Dr M said that Dr N or Dr G might be in a better position to comment (AB 62).
112 That being so, once again, I consider that it was not only open to the Tribunal to prefer the evidence of Dr G, but appropriate to do so.
113 Ms A was called as a witness by the first appellant's counsel on the second day of the hearing. She had been a professional colleague of the first appellant for over 30 years. Ms A's evidence was that the first appellant had visited his overseas office somewhat infrequently since suffering the aneurism: at three to six monthly intervals. Ms A said that she and her colleagues had meetings and discussions with the first appellant which were of two to three hours duration. Ms A said that the first appellant gave advice on various matters relating to his professional practice and that although he had become 'much slower' since 2005, the quality of his advice had not changed since then (AB 409 - AB 411).
114 Mr E was called as a witness by counsel for the first appellant on both hearing days. Mr E had written a letter to the first appellant's solicitor on 20 February 2007, in which he said that the first appellant had been a client of his firm for over 20 years and that for the most part, his work for the first appellant had been to prepare and lodge annual Australian income tax returns and advising on Australian income tax matters generally.
115 Mr E said that he believed that the first appellant had a reasonable understanding of the impact of Australian income tax laws on his affairs and that he had always been mindful of his income tax obligations, even though until recently he had been a non-resident of Australia for income tax purposes. Mr E concluded his letter:
I have always been impressed not only by [the first appellant's] knowledge of all matter[s] pertaining to his affairs, but in addition his courteous and understanding demeanour towards me and my staff. (AB 60)
116 In my view, this letter gave no real insight into the first appellant's mental state since his aneurism. Nor was this issue explored with Mr E
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- when he gave evidence. The evidence was concerned principally with taxation advice Mr E had given to the appellants in 2006 (AB 215 - AB 220).
117 At one stage in Mr E's evidence, the presiding member asked him whether, in the course of a discussion in which he gave taxation advice, the first appellant had asked any questions about 'the risk issue' arising from that advice. The presiding member pressed the question after receiving a non-responsive answer. Mr E then replied:
Well, he - yes, he - I mean, he was (indistinct) - you know - you know, he asked me questions about how to do it, or - you know, what to do - but I - hopefully I - I didn't, sort of - he didn't have too many questions or doubts about what I was saying. (AB 219)
118 The Tribunal said of Mr E and Ms A:
In respect of the evidence of both the accountant, [Mr E] and [Ms A], the work colleague, while each states they have known the [first appellant] for many years and find no change in him following his illness, their contact with him has been infrequent and their opinions do not rebut the professional opinions based on formal assessment of the capacity of the [first appellant]. [94]
119 With all respect to the Tribunal, I have some reservations in accepting that Mr E's evidence - particularly that set out above - justifies the proposition that he found no change in the first appellant following his illness. However, I think the Tribunal was fully entitled to conclude that the evidence of Mr E and Ms A did not rebut the medical evidence.
120 Further, I consider that the Tribunal would have been entitled to regard Ms A and Mr E as being somewhat biased witnesses. Ms A said that if the Tribunal found that the first appellant should be 'under administorship' it would have 'a negative impact' not only for him but for the overseas professional practice and the associated professional community.
121 Mr E was the accountant of both appellants. Further, he had given taxation advice which led to the transfer of substantial funds belonging to the first appellant, into the hands of the second appellant's son overseas on the basis that the income from those funds would not be subject to Australian income tax.
122 I shall refer to this matter in more detail below. It is sufficient to note at this point that questions put to Mr E by the presiding member and the respondent's solicitor would have alerted him to the prospect of an
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- investigation by the Australian Taxation Office which might result in embarrassment for him. Mr E therefore had a personal interest in the outcome of the application.
123 These observations also answer grounds 6(c) and 6(d) above.
124 Ground 6(e) is directed to [95] of the Tribunal's reasons in which it is said:
In making these findings regarding the [first appellant's] incapacity to make reasonable judgments about his estate, we rely on the medical evidence and the inferences which may be drawn from that evidence and not from the assertions that decisions said to have been made by the [first appellant] in relation to his financial affairs are 'out of character'. Of course, these transactions will now be considered in the light of the medical evidence and the finding of incapacity but the decisions or transactions themselves are not in our view evidence of incapacity of the [first appellant]. It is the case that a capable person is entitled to make decisions which others might consider unwise or out of character. The legislation provides that there is a presumption of capacity and this can only be rebutted by evidence to the contrary. In this case, the medical evidence has, in our view, rebutted that presumption.
125 The complaint is that the Tribunal did not identify the inferences which it drew from the medical evidence. However, the Tribunal did not say that it had drawn any specific inferences: only that it relied on the medical evidence as a basis for its findings about the first appellant's capacity. In other words, the Tribunal approached the matter in that way, rather than on the basis asserted by the respondent: that the decisions the first appellant was said to have made in relation to his financial affairs were 'out of character'.
126 If I am wrong in that interpretation, I would not set aside the Tribunal's decision for that reason. That is because I think the inferences to be drawn from the medical evidence are clear: that the first appellant was not capable of making reasonable judgments about his financial affairs. That can only be a matter of inference: there is no direct evidence of incapacity.
Grounds 7 and 8
7. The Tribunal erred in fact and in law in that the comments by Dr N in his report dated 14 February 2007, indicating that Dr G would be in the best position to assess the First Appellant's cognitive function, did not provide grounds for preferring Dr G's evidence over that of Dr N in that the comments by Dr N in his report were made some 3 months prior to Dr G's assessment and report and
- were directed towards the potentiality and not the actuality of the assessment by Dr G.
- 8. The Tribunal erred in fact and in law in preferring the evidence of Dr G, Ms S and Ms E to the evidence of Dr M, Dr N for the reason that Dr G assessed the representative person's capacity whereas Dr M did not, and because Dr G, Ms S and Ms E had specialist experience when the evidence did not establish that Dr G, Ms S and Ms E had specialist experience or adequately tested the First Appellant's relevant cognitive ability.
127 In my view, these grounds do not add anything to grounds 1 to 6 above and therefore require no further comment.
Ground 9
In determining that the First Appellant's estate was complex, the Tribunal erred in fact and in law in having regard to the First Appellant's estate [overseas], that not being a relevant consideration given that the orders of the Tribunal did not extend to the First Appellant's interests [overseas] and would, therefore, not be affected by the appointment of an administrator under the Act.
128 In [91] of its reasons, the Tribunal said:
At the time of the hearings, the estate of the [first appellant] appears to be jointly owned properties in Western Australia with [the second appellant], jointly owned bank accounts, a bank account in his own name with $6000 on deposit, an investment property in Western Australia, an unspecified interest in funds held in the tax minimisation arrangement and a business, commercial and residential properties and motor vehicles overseas.
129 Then, after making findings about the first appellant's mental capacity, the Tribunal continued:
In respect of the need for an administrator, when considered in its entirety we conclude that the represented person's estate is large and complex and that the decisions required for its management are now beyond him given his diagnosis of cognitive impairment and the consequences which flow from that diagnosis.
The transactions undertaken in respect of the estate from October 2005 have included the transfer of funds from accounts in his sole name and the transfer of funds to a third person with apparent loss of control over those funds. The represented person now has one account in his name with only $6000 on deposit. The termination of arrangements on that account in place for many years for payments to his former spouse and grandchildren has led to legal action against him in another country.
(Page 28)
- Having found that it is more likely than not that the [first appellant's] cognitive impairment and incapacity to deal with his estate dates from October 2005, there is a doubt about his capacity to direct or consent to the significant transactions which have ultimately led to a diminution of his estate. ([96] - [98])
130 The appellants contend that the Tribunal appeared to accept that its order would extend only to assets held in Australia. That was the understanding expressed by the presiding member during the course of submissions (AB 252). Although, clearly, the Tribunal cannot make an order which has extra territorial effect, it is reasonable to suppose that persons out of the jurisdiction who were dealing with the administrator would recognise that he derived his authority from the order of the Tribunal.
131 The appellants rely also on the statement made by counsel for the respondent that the first appellant's financial affairs were 'rather simple' (AB 240).
132 However, in my view, that statement is taken out of context. Counsel's point was that the first appellant's financial affairs in Australia were simple because substantial assets which he had held in his sole name had been transferred into joint names (impliedly, at the behest of the second appellant) and that accordingly, it was not open to the second appellant to rely on her conduct in order to defeat a finding that the first appellant no longer retained capacity.
133 I do not accept that the Tribunal was required to have regard only to the first appellant's Australian estate. If a person was so lacking in capacity as to require an administrator for his estate, it would seem wrong in principle for the administrator to be concerned only with his Australian estate. If the person concerned had substantial foreign assets which it was his custom to manage from Australia, the need for the management of those assets would be as great as that required for the Australian assets.
134 In any event, I do not think that the appellants' contention is supported by the provisions of the Guardianship Act. Section 64(1) empowers the Tribunal to appoint a person to be the administrator of 'the estate' of the person in respect of whom the application is made. There is no definition of 'estate' in the Act. That being so, I see no reason to read down the term so as to confine it to Australian or Western Australian estate.
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135 In my view, that construction is supported by s 67(1) which provides that an order may be made under s 64(1) in respect of a person who is not resident or domiciled in Western Australia:
But any such order is limited to the person's estate within Western Australia.
- I therefore draw the inference that an order made in respect of a person who is resident or domiciled in Western Australia is not subject to any such limitation.
136 There is another consideration. If the first appellant did not have sufficient capacity to understand or give proper consent to the transactions he entered into after suffering the aneurism in October 2005, then those transactions will be void or voidable: see PT Ltd v Maradona Pty Ltd (1992) 25 NSWLR 643, 673 - 675. In those circumstances, the first appellant's estate would include a cause of action against the person or persons responsible for procuring his consent to the transactions or causing him to sign any relevant documents. Even if the assets had been transferred overseas, the cause of action would exist in Australia.
137 This is not a matter which the Tribunal considered. However, it is a circumstance which adds to the complexity of the first appellant's estate and hence, the need for an administrator to investigate these matters.
138 I therefore conclude that the Tribunal was correct to regard the first appellant's estate as including his property both here and overseas.
Ground 9A
The Tribunal erred in fact and law and its decision was made without jurisdiction, alternatively its decision should otherwise be reviewed for the reason that it did not identify the transactions the First Appellant was required to undertake but which it held he could not undertake by reason of the asserted incapacity.
139 The appellants contend that the jurisdiction of the Tribunal depended on it making a finding of fact to the effect that the first appellant was unable to make reasonable judgments in respect of identifiable transactions that he would be required to make in relation to his estate. The appellants rely on the decision of the High Court in Gibbons v Wright (1954) 91 CLR 423. There, in the joint judgment of Dixon CJ, Kitto and Taylor JJ, their Honours approved a statement made in the English Court of Appeal that:
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- One cannot consider soundness of mind in the air, so to speak, but only in relation to the facts and the subject matter of the particular case.
140 In my view, that proposition does not support the appellants' contention. It was made in the context of a case in which the issue was whether one or other or both of two signatories to a transfer of shares in a joint tenancy were of sound mind and understanding and capable of understanding or entering into the transaction.
141 By contrast, s 43(1)(b)(ii) requires the Tribunal to consider whether a person in respect of whom an application for a guardianship order is made is unable to make reasonable judgments 'in respect of matters relating to his person'.
142 In my view, that provision does not require the Tribunal to identify every conceivable transaction which the person concerned might be required to make or wish to make in relation to his estate. Even in respect of the simplest estates, there might be a huge and possibly infinite number of potential transactions. The very width of the enquiry the Tribunal would have to make if the appellants' contention is correct, suggests that this cannot have been the Parliament's intention.
143 I therefore consider that the Tribunal has jurisdiction to appoint a guardian if it considers, having regard to the nature of the person's mental state and the nature of his estate, that he is unable to make reasonable judgments in respect of it. That is what the Tribunal did in the present case.
Ground 10A
The Tribunal erred in fact and law, or acted without or in excess of jurisdiction or both, in purporting to amend and replace on 28 August 2007, pursuant to section 83(1) of the State Administrative Tribunal Act 2004 ('the Act'), the orders it made on 7 August 2007, in circumstances where the decision was not corrected to rectify any of the matters specified in section 83(1)(a) to (d) of the Act, and at which time the Tribunal was functus officio.
144 When giving the Tribunal's reasons on 7 August 2007, the presiding member commenced by summarising the effect of the relevant provisions of the Guardianship Act. In so doing, the presiding member referred to the requirement that:
… an order not be made where there is an alternative means of meeting a person's needs which is less restrictive of their freedom of decision and action. (AB 445)
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- This is clearly a reference to s 4(2)(c) of the Guardianship Act, which is to the effect stated by the presiding member.
145 The presiding member then referred to the medical evidence and to the first appellant's estate, in Australia and overseas. The presiding member said:
There are decisions to be made in relation to a number of aspects of the [first appellant's] estate which are now too complex for him given his diagnosis and its impact on his capacity. When determining whether there is a need for an administrator, we must consider whether the needs of the [first appellant] can be met in a less restrictive way than a formal appointment. (AB 446 - 447)
146 The presiding member then said the Tribunal had considered whether the enduring power of attorney executed in November 2006, would provide a less restrictive alternative to the appointment of an administrator but had decided that 'it cannot act in that way or cannot operate in that way'.
147 Having accepted that there was a need for an independent administrator to be appointed in relation to the first appellant's estate, the Tribunal went on to consider who might undertake that function. In so doing, the first person to be considered was the second appellant. The presiding member said the Tribunal acknowledged the long-term relationship of the appellants and the second appellant's role as 'the primary carer and spouse of the first appellant'.
148 The presiding member went on to note that the transactions which had taken place since October 2005 had had the effect of diminishing the first appellant's estate and enlarging that of the second appellant. The presiding member said:
In particular the transfers of funds from the accounts in the sole name of the [first appellant] into joint names and the reduction of funds in the Commonwealth Bank account following his illness raise issues about the appropriateness of those transactions which we understand had been primarily effected by the [second appellant].
We accept the submission that the effect of this has been that at the present time on(ly) $6,000 remains in the control of the [first appellant], when prior to October 2005 millions of dollars were said to be held in his name. In the face of this the [second appellant] is placed in a position of conflict in relation to the estate of the [first appellant] and her own interest. It is in our view the best interest of the [first appellant] that an independent administrator be appointed. The legislation is protective in its intent and
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- it's the obligation of the Tribunal to act in the best interest of the represented person as its primary obligation. (AB 447 - 448)
149 In the Tribunal's written reasons at [126] (AB 478) the Tribunal said that the second appellant could not act without conflict in relation to the interests of the first appellant and so should not be appointed as his administrator.
150 Section 108(1a) of the Guardianship Act provides that where the Tribunal makes an administration order, and the continued obligation of an enduring power of attorney created under s 104 would be inconsistent with the functions of the administrator, the Tribunal 'shall revoke the power or vary it to remove the inconsistency'.
151 That was clearly the position in the present case. Having concluded that it would be inappropriate to appoint the second appellant as the administrator of the first appellant's estate because of the conflict of interest, it would obviously have been inconsistent with that decision to permit the enduring power of attorney to remain in place. However, the order made by the Tribunal on 7 August 2007 made no reference to the enduring power of attorney.
152 The order of 7 August 2007 was amended and replaced by an order made on 28 August 2007, which the Tribunal made of its own motion. The second order added an additional provision whereby the enduring power of attorney made on 10 November 2006 was revoked.
153 The second order is expressed to have been made pursuant to s 83(1) of the SAT Act. It provides:
(1) The Tribunal may correct a decision it gives or a statement of the reasons it has given for its decision to the extent necessary to rectify -
(a) a clerical mistake;
(b) an error arising from an accidental slip or omission;
(c) a material miscalculation of figures or a material mistake in the description of any person, thing, or matter referred to in the decision; or
(d) a defect of form.
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- (2) The correction may be made -
(a) on a party's application made in accordance with the rules; or
(b) on the Tribunal's own initiative.
155 In [116] of the written reasons the Tribunal said:
We are not satisfied that the various informal arrangements by which the [first appellant's] estate has been managed meet his needs and we are satisfied that there is a need for an administration order to be made and that the enduring power of attorney should be revoked.
- In [130], the Tribunal referred to having made orders which were then set out. These were the orders which included the revocation of the enduring power of attorney.
156 It was not, of course, accurate to say that the Tribunal had made that order on 7 August 2007, although the order had been made by the time the Tribunal delivered its written reasons.
157 I accept the appellants' submissions that the first order did not contain an error of the kind contemplated by s 83(1)(a), s 83(1)(c) or s 83(1)(d). However, in the circumstances as I have summarised them above, I consider that the absence from the first order of any reference to the revocation of the enduring power of attorney reflects an accidental slip or omission of the kind contemplated by s 83(1)(b). I take that view because I consider that as the Tribunal held that the second appellant's conflict of interest precluded her from appointment as administrator of the first appellant's estate, it was inevitable, having regard to s 108(1a) of the Guardianship Act, that the enduring power of attorney would be revoked.
158 If I am wrong in my view that s 83(1)(b) applies, I would nevertheless confirm the order revoking the enduring power of attorney, in the exercise of the powers vested in the court from the hearing of an appeal, pursuant to s 30(1)(a) of the Guardianship Act.
Ground 10
In arriving at its decision to revoke the enduring power of attorney made by the First Appellant on 10 November 2006 appointing his wife, the Second Appellant the donee of the power, the Tribunal failed to accord the Second Appellant procedural fairness in that:
(Page 34)
- (a) The issue of the revocation of the enduring power of attorney materially affected the rights and interests of the Second Appellant given, as the Tribunal held, that the Second Appellant held assets jointly with the First Appellant;
(b) The issue of the revocation of the enduring power of attorney was raised by the Tribunal only on the resumption of the hearing on 7 August 2007, the same day as the decision to revoke the enduring power of attorney was made;
(c) The manner in which the possibility of the revocation was raised and the terminology employed did not lead the Second Appellant to appreciate that the Tribunal was considering whether to revoke the enduring power of attorney;
(d) The Second Appellant was not afforded a reasonable opportunity or any opportunity to be heard or to call evidence before the decision to revoke the enduring power of attorney was made by the Tribunal on 28 August 2007 by way of an amendment to its orders made on 7 August 2007.
159 In her affidavit in support of the application for leave to appeal, the second appellant said she had never been informed by the Tribunal, her solicitor or counsel, either before or at the hearing on 7 August 2007, that there was a possibility the enduring power of attorney would be revoked; and she did not understand that to be a possibility.
160 The second appellant said further that had she known that the Tribunal would be basing its decision on a conflict of interest between the first appellant's and her interests because of the transfer of funds from accounts in the first appellant's name into joint accounts and the transfer of funds into 'the Tax Management Account', then, the second appellant would have asked to call evidence about the circumstances of those transactions, the first appellant's involvement in the decisions concerning those transactions and the reasons for them. In particular, the second appellant said she would have asked to call evidence about the Tax Management Account since 'from the very beginning' she and the first appellant had wanted to provide evidence to the Tribunal about that account, including evidence showing that the account was in her son's name, evidence of both the first appellant's and her involvement in the decision to open and deposit funds into the account and evidence from all of the parties involved in the arrangement, including her son. The second appellant said the only reason she and the first appellant had not provided all of that evidence to the Tribunal was that at the very beginning of the proceedings, her counsel had advised that the respondent and the Tribunal
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- did not need to know the details of the arrangement, including the fact that the account was in her son's name: par 52 to par 54.
161 That evidence was not challenged. Indeed, counsel for the respondent accepted that the possibility of revocation of the enduring power of attorney might not have occurred to the second appellant (ts 90). However, as will be seen, the second appellant's assertion that she wanted to provide evidence to the Tribunal about the Tax Management Account is inconsistent with the fact that her then counsel informed the Tribunal, on the first day of the hearing, that his clients were reluctant to provide that information.
162 In my view, if the second appellant did not appreciate at an early stage in the proceedings that revocation of the enduring power of attorney was a possibility, that is because she did not provide sufficient information to her solicitor or counsel to enable them to advise that this was a likely outcome.
163 It will be recalled that the Tribunal referred the application to the Public Advocate. The Public Advocate's liaison officer noted on 15 January 2007 that the Tribunal had identified a need for a referral to the Public Advocate to investigate 'complex financial matters' (AB 42).
164 On 1 February 2007, the Public Advocate wrote to the second appellant seeking details of the first appellant's financial affairs.
165 In response, the second appellant wrote to the Public Advocate on 22 February 2007 (AB 128 - 131). She said she had decided to write the letter to provide 'further background information on both my relationship and other matters, including [the first appellant's] care and wellbeing'.
166 The second appellant referred to some financial and property transactions in her letter. She concluded her letter in the following way:
As regards the proposal for a 'Public Administrator' to be appointed, to manage my husband's affairs, I believe I am already managing these in a proper manner and am fully aware of my responsibilities, under the Enduring Power of Attorney, to which we both agreed in 2006. That duty whether by order of a Tribunal or EPA is clear and understood.
To demonstrate my ability to manage our own affairs I have attached a summary of major cash & asset transactions. In instances where I felt we needed additional help, we sought the advice of Mr E, of [a firm of chartered accountants] …
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- Mr E has known [the first appellant] for over 20 years and has advised [him] on his Australian assets during the entire period. On a most recent visit in September 2006, we discussed 'tax planning' and took action, upon his advice, to limit our exposure, on most recent asset sales.
In conclusion I must add that we are both well into our senior years and this unnecessary, confusing and bewildering legal process is doing nothing to help either of us enjoy what remains of our life together. Rather it is causing a type of 'pain and suffering' which can only be described as cruel.
167 Although the second appellant said she had attached 'a summary of major cash & asset transactions' with her letter, she did not in fact do so. Further, the letter gave no clue as to the action taken to limit the appellants' 'exposure' to income tax.
168 On 3 April 2007, the Public Advocate wrote to the second appellant's solicitors saying that she had not received a response to her inquiry. She asked the solicitors to pursue the matter.
169 On 7 June 2007, the second appellant's solicitors wrote to the Tribunal enclosing some financial information. However, that information contained no reference to the arrangement made in relation to income tax matters.
170 At the hearing on 19 June 2007, counsel for the respondent reviewed the financial information which had been provided to the Tribunal by the second appellant. Counsel submitted that approximately $4.5 million of the first appellant's funds were not accounted for. This submission apparently took the appellants' then counsel by surprise. Counsel said these were 'new issues' on which he would have to take instructions (AB 211).
171 Following a short adjournment, the appellants' counsel called two witnesses. They were Mr G, who is the second appellant's son-in-law and Mr E, the appellants' accountant.
172 Mr E said he had suggested to the appellants that they should invest surplus funds in the name of a non-resident 'because there's a fairly considerable tax advantage to be gained by paying 10 per cent withholding tax, as opposed to - potentially 46 and a half per cent income tax'.
173 Mr E went on to say that there was 'potentially' $3 or $4 million to be invested.
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174 When cross-examined, Mr E was asked whether he had advised the appellants about regaining control of the funds if it was to be transferred into the name of another person. Mr E said he had told the appellants that the funds should be invested with someone they could trust. This was because, as Mr E accepted, the transaction would appear to be a gift (AB 216).
175 In re-examination, Mr E was asked by the appellants' counsel whether the arrangements would be tax effective. He was asked:
Would not the Tax Department say, if you've got effective control over the money, it's still your money?
- Mr E replied:
Well, I guess it's a question of where - how deeply they inquire. (AB 217)
A little later, the respondent's counsel said that presumably, the appellants' counsel would want to clarify 'as to the third party now holding a significant sum of money'. When invited by the presiding member to respond, the appellants' counsel said:
Yes, well that presents a problem. Obviously my clients would prefer not to disclose the identity of the party and are prepared to give evidence that they did act on the advice, but - and I also raise the question whether how relevant is it to the Tribunal to know the identity of the party? … It's our position that what's happened to the money is - it was acted on the accountant's advice on how to deal with these funds for tax purposes and so the identity of the holder of the money, I would say for the purpose of this inquiry, are not … that relevant.
When asked by another member of the Tribunal how much had been invested, the appellants' counsel said $3,735,984 (AB 220).
176 Having regard to the uncertainty about the first appellant's financial affairs, the Tribunal was unable to reach a decision on 19 June and made an order requiring the first appellant's solicitor to provide further information. This was to be filed with the Tribunal and provided to the respondent's solicitor and the Public Advocate. The information was to include:
• a schedule of all assets held in the first appellant's name overseas;
• bank statements of accounts in Australia and overseas held in the first appellant's name or in which he has an interest, from 1 July 2005 to the date of the order;
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- • 'written confirmation of the funds said to be held on behalf of [the first appellant] by a third person, the name of that person, the source of those funds and a description of the nature of the arrangement by which those funds are held and any documentary evidence in relation to those funds' (AB 186).
177 Pausing there, if, as the second appellant says, she wanted to provide evidence to the Tribunal about the Tax Management Account, this was the opportunity for her to do so.
178 At the resumed hearing on 7 August 2007, Mr E gave further evidence, to which I have already referred under ground 10, about the arrangement made for the purpose of minimising the first appellant's liability to Australian income tax (AB 404 - 405).
179 However, despite that additional evidence and the further information provided to the Tribunal in response to its order of 19 June 2007, the precise arrangement is far from clear. Even now, the appellants have not sought to adduce any further evidence in relation to this matter, despite the fact that under s 29 of the Guardianship Act, the court may receive further evidence, either oral or by affidavit, for the purpose of determining an appeal such as this.
180 In its written reasons, the Tribunal analysed numerous banking transactions involving the funds of both the first and second appellants and referred in detail to the 'tax minimisation arrangement'. Having done so, the Tribunal said:
The evidence shows that there have been significant transactions undertaken in relation to the [the first appellant's] estate since his illness in October 2005.
However, the Tribunal has had some difficulty in marshalling the evidence to enable it to be satisfied as to the nature, extent and purpose of the movements in the [the first appellant's] estate. The documentary evidence provided by way of bank statements and other material shows the transfer of funds, but no explanations are given for many transactions. There is dispute about some of the evidence but there is no dispute that the [first appellant] owned two overseas deposits totalling approximately $1 000 000 which in late 2006 were closed and the funds transferred to a bank account in Western Australia jointly owned with his spouse. [84] - [85]
181 In the course of the hearing I expressed the view (which was accepted by counsel for the appellants) that the so-called tax minimisation arrangement is, in substance, a fraud on the revenue. The object of the
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- arrangement is to evade income tax. It seems that the appellants have placed some $3.7 million into the hands of the second appellant's son, who is not a resident of Australia, so that the income which he will derive from the investment of that fund will be substantially tax-free. If this arrangement is to have the desired effect, then, it seems to me, it must require each of the appellants to make false declarations on their income tax returns. That is to say, they will conceal the fact that they own or have control of the funds in the hands of the second appellant's son.
182 In my view this is clearly a highly imprudent arrangement. Not only does it involve the risk that the second appellant's son might invest the fund unwisely, it exposes the first appellant to the possibility of investigation by the Australian Taxation Office and the potential for the imposition of, at least, a penalty.
183 This, together with the uncertainty in the first appellant's financial affairs, made the appointment of an administrator inevitable. And in those circumstances, it was equally inevitable, in my view, that the enduring power of attorney would be revoked.
184 It is true that the Tribunal did not at any stage of the proceedings inform the appellants that it was the Tribunal's intention to take that step. However, I do not consider that in the circumstances, as summarised above, there has been a lack of procedural fairness.
185 In my view, the appellants' complaint is answered by the decision of the Full Court of the Federal Court of Australia in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 127 ALR 699, 714. There, the court said:
A person likely to be affected by an administrative decision to which requirements of procedural fairness apply can support his or her case by appropriate information but cannot complain if it is not accepted. On the other hand, if information on some factor personal to that person is obtained from some other source and is likely to have an effect upon the outcome, he or she should be given the opportunity of dealing with it: Kioa v West, supra, at CLR 587 per Mason J, at CLR 628 per Brennan J. Within the bounds of rationality a decision maker is generally not obliged to invite comment on the evaluation of the subject's case: Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 at 506 per Fox J, at 513 per Neaves J. In Ansett Transport Industries Ltd v Minister for Aviation (1987) 72 ALR 469 at 499, Lockhart J expressly agreed with the observations of Fox J in Sinnathamby on this point. See also Geroudis v Minister for Immigration Local Government and Ethnic Affairs (1990) 19 ALD 755 at 756-7 per French J and Somaghi v Minister
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- for Immigration, Local Government and Ethnic Affairs, supra at FCR 103 per Keely J, at FCR 119 per Gummow J.
The general propositions set out above may be subject to qualifications in particular cases. Two such qualifications were enunciated by Jenkinson J in Somaghi, supra, at FCR 108-9:
1. The subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity of dealing with it: Kioa v West, supra, at CLR 587 per Mason J; Sinnathamby, supra, at 348 per Burchett J; Broussard v Minister for Immigration, Local Government and Ethnic Affairs (1989) 98 ALR 180 at 189 per Burchett J.
2. The subject is entitled to respond to any adverse conclusion drawn by the decision maker on material supplied by or known to the subject which is not an obvious and natural evaluation of that material: Minister for Immigration and Ethnic Affairs v Kumar (FCA(FC) 31 May 1990, unreported); Kioa v West, supra at CLR 573, 588 and 634.
186 The essential point here, in my view, is that the conclusion reached by the Tribunal - and the inevitability of that conclusion, as I believe it to be - is based entirely on information provided by the appellants. That being so, as the court said in the Alphaone decision, the appellants cannot complain if the information they provided was not accepted or, as in this case, if the Tribunal did not accept the submissions made on their behalf which were based on that information.
187 Put another way, the result flowed from 'an obvious and natural evaluation' of the material provided to the Tribunal by the appellants as envisaged in the final paragraph of the extract from the Alphaone decision, set out above.
Ground 11
The Tribunal erred in fact and in law, and its decision not to appoint the Second Appellant administrator of the estate of the First Appellant was made without jurisdiction, in that the Tribunal failed to have sufficient regard to the fact that the First Appellant and the Second Appellant had been in a long term relationship since in or about 1988 when considering the financial arrangements made by them.
188 In reaching its decision, the Tribunal clearly took into account the fact that the appellants had been in a long-term relationship. The presiding member referred in her ex tempore reasons both to the long-term relationship and the second appellant's role as 'primary carer
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- and spouse' of the first appellant (AB 447). The Tribunal referred to the long-term relationship in its written reasons (eg par 15).
189 However, accepting that the relationship between the appellants is not only long term, but also a loving and caring relationship, does not alter the fact that since suffering an aneurism in October 2005, the first appellant's estate has been diminished to the benefit of the second appellant.
190 It may be said that the post-aneurism transactions of this kind are similar in their nature to those effected at a time when there could be no doubt about the first appellant's capacity. However, it is not enough to say that had the first appellant not been afflicted as he was, it is likely that he would have entered into the post-aneurism transactions as he did. In other words, once the first appellant had suffered a loss of capacity, it was not open to the second appellant to cause the first appellant to enter into the transactions he did, for her benefit, on the basis that this is what he would have wished to do.
Grounds 11A and B
11A. The Tribunal erred in fact and law and its decision was made without jurisdiction, alternatively its decision should otherwise be reviewed for the reason that the Tribunal found that it was not in the best interests of the First Appellant to rely on the validity of the power of attorney for the expressed reason that the First Appellant was incapable of executing the power of attorney when there was no evidence or insufficient evidence to sustain that finding and the Tribunal failed to have regard to the evidence of Drs N and M who both expressed the opinion that the First Appellant had the capacity to execute the enduring power of attorney.
11B. The Tribunal erred in fact and law and its decision was made without jurisdiction, alternatively its decision should otherwise be reviewed for the reason that the Tribunal found that it was not in the best interests of the First Appellant to rely on the enduring power of attorney in circumstances where the Tribunal failed to consider and make a finding whether the First Appellant understood the general purport of the enduring power of attorney.
191 In my view, it is not necessary to consider whether the first appellant was capable of executing the enduring power of attorney. The point of the Tribunal's decision is that even if the enduring power of attorney was valid, having been made with the first appellant's full knowledge and understanding, it was not in his interests for the enduring power of attorney to be relied on.
(Page 42)
Ground 12
The Tribunal erred in fact and in law, and its decision was made in excess of its jurisdiction, in that the Tribunal made its decision not to appoint the Second Appellant administrator of the estate of the First Appellant not because the First Appellant was in need of an administrator by reason of a conflict of interest of the First Appellant and the Second Appellant, but to enable it to identify whether there was a conflict of interests requiring the appointment of an administrator.
192 In my view, this ground mis-states the position. The Tribunal decided that the first appellant was in need of an administrator because of the decline in his mental capacity, following the aneurism. Having reached that conclusion, the Tribunal went on to consider who should be appointed as administrator. In so doing, the Tribunal considered various candidates, including the second appellant. The Tribunal held that it was inappropriate to appoint the second appellant because of the conflict of interest. However, the Tribunal did not, as asserted in ground 12, conclude that the first appellant was in need of an administrator by reason of a conflict of interest.
Ground 13
The Tribunal erred in fact and in law, and its decision was made in excess of its jurisdiction, in that, in holding that the First Appellant did not have the capacity to execute his enduring power of attorney, the Tribunal had regard to the First Appellant's indications to Dr G made prior to 21 February 2006 that the First Appellant did not want to give an enduring power of attorney in circumstances where:
(a) the disinclination to give an enduring power of attorney could not be logically probative or relevant to the question whether the First Appellant lacked the capacity to give an enduring power of attorney;
(b) Dr G gave no evidence that he considered the First Appellant was incapable of giving an enduring power of attorney at that time;
(c) there was no evidence given as to the reasons, if any, given by the First Appellant for the alleged disinclination; and
(d) the Tribunal failed to have regard to the fact that the person to whom the First Appellant did not want to give the enduring power of attorney was not the Second Appellant but the First Appellant's daughter.
193 In its written reasons, the Tribunal referred to the uncontested evidence that the first appellant had refused to execute an enduring power
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- of attorney and had not attended an interview with Dr G in February 2006, for the purpose of assessing his capacity to do so [110]. However, although the Tribunal referred to this evidence, it does not appear to have played any part in the decision-making process. As I have noted above, in relation to grounds 11A and B, the question whether the first appellant was capable of executing the enduring power of attorney when he did, is irrelevant.
Ground 14
The Tribunal erred in fact and in law, and its decision was made in excess of its jurisdiction, in that, in holding that the First Appellant did not have the capacity to execute his enduring power of attorney, the Tribunal had regard to Ms S's assessment made on 19 May 2006 in circumstances where:
(a) Ms S was not addressing, and did not address, the question whether the First Appellant had the capacity to make an enduring power of attorney; and
(b) The particulars in paragraphs 2, 3, 4, and 6(e) are repeated.
194 The Tribunal said in [113] of its reasons:
Given the evidence of Dr G and the evidence of the clinical psychologist's assessment conducted in May 2006, which reports 'mild to moderate cognitive impairment, executive dysfunction and scores which were well below the cut off score for dementia', the Tribunal concludes that it is more likely than not that the [first appellant's] condition and incapacity existed at the time of the execution of the enduring power of attorney in November 2006.
195 The psychologist's assessment referred to in this passage is that of Ms S.
196 While it is true that Ms S did not address the question whether the first appellant had capacity to make an enduring power of attorney, the Tribunal did not base its conclusion on her evidence alone. As I have noted above, the Tribunal reviewed all of the medical evidence in reaching its decision: and in my view, on the whole of the evidence, the decision was justified.
197 In any event, as I have said in relation to ground 13, I consider that the question whether the first appellant had the capacity to execute the enduring power of attorney is irrelevant. The conclusion that the enduring power of attorney should be revoked is not affected by considerations of its validity.
(Page 44)
Ground 15
The Tribunal erred in fact and in law, and its decision was made in excess of its jurisdiction, in holding that the Second Appellant had a conflict of interest which precluded her from being appointed administrator (the need for which is in any event denied) by reason that following her marriage with the First Appellant monies were placed in their joint names and funds in the Commonwealth bank expended when such conduct was wholly unexceptional.
198 Again, in my view, this ground mis-states the position. The Tribunal did not conclude that the second appellant had a conflict of interest which precluded her from being appointed administrator of the first appellant's estate by reason only that the first appellant's moneys were placed in a joint account with the Commonwealth Bank.
199 The Tribunal referred to the Commonwealth Cash Management Core account in [58] to [61] and [104] of its reasons.
200 In the ex tempore reasons given on 7 August 2007, the presiding member, apparently referring to the Commonwealth Bank account, said:
The transactions which have occurred since October 2005 have had the effect of diminishing [the first appellant's] estate and enlarging [the second appellant's] in particular the transfers of funds from the accounts in the sole name of [the first appellant] into joint names and the reduction of funds in the Commonwealth Bank account following his illness raise issues about the appropriateness of those transactions which we understand to have been primarily effected by [the second appellant]. (AB 447) (emphasis supplied)
201 Thus, it is clear that the issue relating to the Commonwealth Bank account was only one of the factors the Tribunal took into account in concluding that there was a conflict of interest. Clearly, it would have been inappropriate to appoint the second appellant as administrator of the first appellant's estate, when one of the obligations of that appointment would be to investigate transactions to which the second appellant was a party.
Ground 16
The Tribunal erred in fact and in law, and its decision was made in excess of its jurisdiction, in holding that the Second Appellant had a conflict of interest which precluded her from being appointed administrator (the need for which is in any event denied) by reason that the transfer of funds from the First Appellant to the Second Appellant was primarily effected by the Second Appellant when there was no evidence that was the case.
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202 I do not accept the contention that there was no evidence that transfers of funds from the first appellant to the second appellant were 'primarily effected by the second appellant'.
203 Although the Tribunal appears to have accepted that the second appellant had not operated the enduring power of attorney, there was evidence, to which the Tribunal referred, that the second appellant had operated the Commonwealth Cash Management Core account by utilising blank cheques signed by the first appellant: reasons [61].
204 Further, given the Tribunal's finding that the first appellant was incapable of managing his affairs, the inference was open to the Tribunal that since his aneurism, the first appellant's affairs had in fact been managed by the second appellant.
Ground 17
The Tribunal erred in fact and in law, and its decision was made in excess of its jurisdiction, in holding that the Second Appellant had a conflict of interest which precluded her from being appointed administrator (the need for which is in any event denied) by reason of the tax minimisation arrangement with her son when it made no findings that the arrangement was adverse to the desires of the First Appellant or the interests of the First Appellant.
205 In my view, the position in relation to the so-called tax minimisation arrangement is the same as that in relation to the Commonwealth Bank account. The arrangement required further investigation: and the second appellant was not the appropriate person to carry out that investigation.
206 Further, I do not think it would have been open to the Tribunal to find whether or not the arrangement was 'adverse to the desires of the first appellant'. Given the Tribunal's finding about the first appellant's lack of capacity, an inquiry into his desire would have been pointless.
207 For the reasons given above, in relation to ground 10, it appears that the arrangement was adverse to the first appellant's interests because of the risks to which it exposed him.
Ground 18
The Tribunal erred in fact and in law, and its decision was made in excess of its jurisdiction, in that:
(a) the Tribunal had regard to irrelevant considerations;
(b) the Tribunal failed to have regard to relevant considerations; and
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- (c) its decision was illogical, irrational and inconsistent:
in holding that the Second Appellant had a conflict of interest which precluded her from being appointed administrator (the need for which is in any event denied) by reason of there being a diminution in the First Appellant's estate by reason of the transfer of funds since October 2005 from the First Appellant into the joint names of the First Appellant and Second Appellant, given that the Tribunal was not satisfied that it was able to identify the nature, extent and movements in the First Appellant's estate and relevant transactions and that the Second Appellant had sold two properties and applied the funds towards the purchase of a residence in the joint names of herself and the First Appellant.
208 In my view, the very fact that the Tribunal was unable to identify precisely the nature, extent and movements in the first appellant's estate, highlighted the need for an investigation into those matters: an investigation which, for the reasons set out above, could not properly be left to the second appellant.
Ground 19
The Tribunal erred in fact and in law, had regard to irrelevant considerations, and its decision was made in excess of its jurisdiction, in that in the absence of evidence establishing that at the time of the transactions occurring from October 2005 through 2006 the First Appellant was unable to make reasonable judgments in relation to his estate, it was not open to the Tribunal to rely on those transactions as evidence that the Second Appellant 'primarily effected' those transactions (as to which there was no evidence) and that they were effected in conflict with the wishes of the First Appellant.
209 In my view, this ground is, in substance, the same as grounds 16 and 17 and therefore requires no further comment.
Ground 20
The Tribunal erred in fact and in law, and acted without or in excess of jurisdiction, alternatively there is some other reason sufficient to justify a review of its determination, in that:
(a) in deciding that the First Appellant was incapable of making reasonable judgments about any or all of his estate and was in need of an administrator; that the enduring power of attorney executed by the First Appellant appointing the Second Appellant to be his attorney be revoked and that the Public Trustee and not the Second Appellant be appointed administrator of the estate of the First Appellant;
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- (b) having held that the medical evidence was not conclusive, and that it had not identified and crystallised the issues of conflict of interests between the First Appellant and the Second Appellant;
the Tribunal did not have any, or sufficient, regard to the gravity of the issues, or the gravity of the effect of the Tribunal's determinations on the First Appellant and the Second Appellant, nor was the decision of the Tribunal one that it could reasonably come to on the evidence before it.
210 Ground 20 is set out under the heading 'Grounds 1(a), (b) and (c)'. I have set out grounds 1(a) and (b) above, but not ground (c) which is in the following terms:
The Tribunal erred in fact and in law, or acted without or in excess of jurisdiction or both, or alternatively there is some other reason sufficient to justify a review of its determination that:
...
(c) the enduring power of attorney executed by the First Appellant on 10 November 2006 appointing the Second Appellant to be his attorney be revoked and that the Public Trustee in lieu be appointed his administrator and not the Second Appellant;
- It is therefore clear that there is considerable overlap between ground 1(a), (b) and (c) and grounds 20(a) and 12. That being so, I do not consider that ground 20(a) requires any further comment, except in relation to the final paragraph to which I shall refer below.
211 Ground 20(b) appears to me to mis-state the position. The Tribunal made findings on the medical evidence which, for the reasons given above, I consider it was entitled to make and was justified in making.
212 The nature of the conflict of interest between the first and second appellants is clear, for the reasons given above.
213 The gravamen of ground 20 lies in the final paragraph. The appellants submit that the Tribunal did not have sufficient regard to the decision of the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336. There, at 361 - 362, Dixon J held that when the law required the proof of any fact, the tribunal must feel 'an actual persuasion of its occurrence or existence before it can be found'.
214 His Honour went on to say:
[R]easonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent
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- unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.
215 The appellants submit that given the seriousness and gravity of the consequences of its findings, the reasons, given ex tempore by the presiding member, did not sufficiently evince an actual persuasion of the fact that the first appellant lacked the capacity to execute the enduring power of attorney or that there was a conflict of interest between the first and second appellants which was required before the Tribunal could find the enduring power of attorney invalid or that it was inappropriate to appoint the second appellant as the administrator of the first appellant's estate.
216 The appellants go on to submit that because the decision of the Tribunal was not based on its assessment of the credibility of the witnesses, the court is in as good a position as the Tribunal to have regard to the evidence and to form its own conclusion.
217 In my view, there is nothing in the reasons given ex tempore by the presiding member (or in the written reasons of the Tribunal) to suggest that the Tribunal had not come to an actual persuasion about the findings it made and as to the orders which would be appropriate in the circumstances.
218 In any event, for the reasons given above, I consider that the question whether the first appellant had the capacity to execute the enduring power of attorney is irrelevant: the real issue was whether, having regard to the conflict of interest between the first and second appellants, the enduring power of attorney should be revoked.
219 Clearly, the Tribunal had regard to the seriousness and gravity of the consequences of the orders it made. These are matters which flow from the principles to be observed by the Tribunal in dealing with matters of this kind, as set out in s 4 of the Guardianship Act, to which the Tribunal referred.
220 I accept that the Tribunal's decision was not based on considerations of credibility. It is for that reason I have concluded that the Tribunal was justified in the view it took of the medical evidence and in its decision to revoke the enduring power of attorney.
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Ground 1(d)
(d) the oral reasons of the Tribunal delivered on 7 August 2007 were inconsistent with the written reasons of the Tribunal delivered on 17 October 2007 and the written reasons of the Tribunal were internally inconsistent in that:
(i) the oral reasons of the Tribunal found that the First Appellant lacked capacity within the meaning of s 64(1)(a) of the Guardianship and Administration Act 1990 at 10 November 2006 whereas the written reasons of the Tribunal found that the First Appellant lacked capacity in October 2005;
(ii) the oral reasons found that the Second Appellant was not suitable to be appointed as administrator because transactions occurring since October 2005 had the effect of diminishing the estate of the First Appellant whereas in the written reasons the Tribunal did not give that as a reason but instead gave as the reason the entry by the First Appellant into a tax minimisation arrangement which matter was not a reason given in the oral reasons;
(iii) the written reasons (at paragraph 7) found that the enduring power of attorney executed on 10 November 2006 could not be acted on and was revoked by the Tribunal based on the medical evidence of incapacity and because the Second Appellant was in a position of (unspecified) conflict whereas in the oral reasons and in paragraphs 113 and 114 of the written reasons the revocation of the enduring power of attorney was based only on the medical evidence.
222 In the ex tempore judgment, the presiding member said the Tribunal was:
[S]atisfied on balance on all of the evidence that [the first appellant] is unable by reason of a mental disability to make reasonable judgements in respect to matters relating to all of his estate. (AB 446) (emphasis supplied)
- I have emphasised the word is to show that the Tribunal was speaking as at the date of the hearing.
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223 As to (i) above: the appellants submit that an inconsistency arises between the Tribunal's written reasons and that part of the ex tempore judgment in which the presiding member said that the capacity of the first appellant to execute the enduring power of attorney in November 2006 had been raised, both by the appellants and the Public Advocate. The presiding member said the document had been witnessed by a solicitor and a civil celebrant, but it appeared that it was not thought necessary that a doctor be one of the witnesses or be asked to assess the first appellant's capacity prior to its execution (AB 447).
224 This is not a finding as to incapacity as at November 2006. In my view, therefore, the presiding member's observation cannot be said to be inconsistent with the Tribunal's written reasons.
225 As to (ii) above: the Tribunal said in [115] of its written reasons:
In respect of the transactions to transfer funds from his sole name to their joint names and to her son for tax minimisation purposes, there is a question whether these transactions meet the requisite obligation to act with reasonable diligence to protect the interests of the donor required of a donee of a power.
226 The appellants submit that this is inconsistent with that part of the ex tempore judgment in which the presiding member said:
The transactions which have occurred since October 2005 have had the effect of diminishing [the first appellant's] estate and enlarging [the second appellant's]. (AB 447)
227 However, the presiding member went on to say that the Tribunal accepted the submission:
That the effect of this has been that at the present time only $6,000 remains in the control of [the first appellant], when prior to October 2005 millions of dollars were said to be held in his name. (AB 448)
- Further, the presiding member said that the extent of the first appellant's estate needed to be ascertained and that there should be an examination of the transactions from October 2005 (AB 448).
228 In my view, it was entirely consistent for the Tribunal to say in its written reasons that there was a question whether all of the transactions to which the Tribunal referred (including the tax minimisation arrangements) met the interests of the first appellant, and to say that there should be an examination of those transactions.
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229 I therefore see no inconsistency between those parts of the ex tempore and written reasons.
230 Ground (iii) above is based on a mistranscription of the Tribunal's written reasons at [7]. This passage appears in a summary of the Tribunal's decision. It records that although the enduring power of attorney executed in November 2006 had not been acted on, it was revoked by the Tribunal.
231 The Tribunal did not say that the enduring power of attorney was revoked on the basis of the medical evidence. Rather, the Tribunal said that based on the medical evidence, it had concluded that the capacity of the first appellant at the time of execution of the enduring power of attorney was in doubt and that the Attorney [the second appellant] was in a position of conflict of interest in relation to the first appellant's interest.
232 In [113] - [114] of the written reasons, the Tribunal set out its conclusion that it was more likely than not that the first appellant's condition and incapacity existed at the time of the execution of the enduring power of attorney in November 2006.
233 It is true that the Tribunal went on to say that 'because of this' it was not satisfied that it was in the best interests of the first appellant to rely on the enduring power of attorney as a lawful less restrictive alternative to the management of his estate by an appointed administrator. However, as I have noted above, the Tribunal referred in [7] to the conflict which existed between the interests of the first and second appellants. That was the conclusion to which the presiding member referred in the ex tempore reasons. It follows that there is no inconsistency in this respect.
Conclusion
234 As appears from the reasons set out above, I am not persuaded that the Tribunal erred in fact or in law in any of the respects asserted in the grounds of appeal. In my view, the Tribunal was entitled to reach the conclusions it did on the evidence before it and was entirely justified in so doing. That being so, I consider that I should confirm the decision of the Tribunal in the exercise of the power conferred on the court by s 30(1)(a) of the Guardianship Act.
235 Under s 30(1)(e) the court is empowered to make such other order as it thinks fit, including an order as to costs.
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236 I shall hear from counsel in due course as to the question of costs. However, I consider that I should make an order in relation to the so-called tax minimisation arrangements.
237 By that order, I would direct the Public Trustee, as the plenary administrator of the first appellant's estate, if it has not already done so, to inform the Commissioner of Taxation about the arrangements made for the minimisation of income tax by or on behalf of both the appellants so that the Commissioner may take such action as may be considered appropriate.
238 I think it is in the interests of the first appellant to take this step as soon as possible in the hope that any adverse impact on the first appellant's estate may be minimised.
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