SH v Protective Commissioner

[2006] NSWADTAP 4

Appeal Panel - External

CITATION:	SH v Protective Commissioner and Ors [2006] NSWADTAP 4
PARTIES:	APPELLANT SH FIRST RESPONDENT Protective Commissioner SECOND RESPONDENT SI THIRD RESPONDENT AND DECISION MAKER Guardianship Tribunal
FILE NUMBER:	058014
HEARING DATES:	15/11/2005
SUBMISSIONS CLOSED:	11/15/2005
DATE OF DECISION:	02/08/2006
BEFORE:	Hennessy N - Magistrate (Deputy President); Leal S - Judicial Member; Mericourt B - Non Judicial Member
CATCHWORDS:	Financial management order - making
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	C/30001
DATE OF DECISION UNDER APPEAL:	07/25/2005
LEGISLATION CITED:	Guardianship Act 1987
CASES CITED:	Holt v Anor v Protective Commissioner (1993) 31 NSWLR 227 JT and Anor v Protective Commissioner & Ors [2004] NSWADTAP 13 K v K [2000) NSWSC 1052 R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13
REPRESENTATION:	APPELLANT In person FIRST RESPONDENT No appearance SECOND RESPONDENT No appearance THIRD RESPONDENT AND DECISION MAKER E Cho, Solicitor COUNSEL ASSISTING S Free, Solicitor
ORDERS:	Appeal dismissed

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.
Section 126 provides
(1A) This section applies only to the following:

(a) proceedings in the Community Services Division of the Tribunal,

(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,

(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,

(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983

(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.


(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:

(a) who appears as a witness before the Tribunal in any proceedings, or

(b) to whom any proceedings before the Tribunal relate, or

(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,


whether before or after the proceedings are disposed of.
Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.
(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.
(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

1 SI is a 71 year old woman who lives in a flat attached to her own home with her son, her son’s wife and their children. She has been diagnosed with a mild cognitive impairment and short term memory loss. SI is unable to manage her financial affairs apart from her day to day expenditure. Many years ago SI and her son borrowed money using SI’s home as security, in order to pay for SI’s mother to live in a nursing home. Her son now pays all the expenses in relation to his mother’s home including the mortgage repayments. SI’s son, who I will refer to in these reasons as SH, applied to the Guardianship Tribunal for a financial management order in relation to his mother. The reason for that application appears to have been that in the previous two years SI had continually threatened to sell the home and had exhibited some paranoid and abusive behaviours.

2 On 25 July 2005 the Guardianship Tribunal made a financial management order in relation to SI. However instead of appointing her son as the manager of her estate, the Guardianship Tribunal appointed the Protective Commissioner. The reason the Guardianship Tribunal gave for making that decision was that there was a potential conflict of financial interests between SI and SH. SH regards himself as a suitable financial manager for his mother’s estate and has appealed to the Appeal Panel against the Guardianship Tribunal’s decision.

Parties, representation and standing

3 SH represented himself at the hearing. There is no issue as to his standing to bring this appeal as he was a party to the Guardianship Tribunal’s decision. The Appeal Panel appointed the Crown Solicitor as a person to assist us in these proceedings. Stephen Free, solicitor, appeared on behalf of the Crown Solicitor and made detailed written submissions. We agree with and have adopted many of Mr Free’s submissions in these reasons. The first respondent, the Protective Commissioner, indicated that he did not wish to present a case or to make submissions in relation to the matter. The Guardianship Tribunal said that it wished to have an active role in the appeal, but only to the extent of being available to make submissions in relation to the Guardianship Tribunal’s practices and procedures. That is consistent with the principles outlined by the High Court in R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 at 35. Ms Cho appeared for the Guardianship Tribunal.

Appeal Panel’s jurisdiction

4 The Guardianship Tribunal made a financial management order pursuant to s 25E of the Guardianship Act 1987. Decisions made “under” s 25E are appealable to the Appeal Panel. (See 67A(l)(e) of the Guardianship Act.) Section 25M provides that if the Guardianship Tribunal makes a financial management order in respect of the estate of a person, it may appoint a suitable person as manager of the estate or commit the management of the estate to the Protective Commissioner. The Guardianship Tribunal made an order committing the management of SI’s estate to the Protective Commissioner. However s 25M is not included in the list of appealable decisions in s 67A(1). Accordingly, the Guardianship Act does not expressly provide for an appeal to the Appeal Panel against a decision of the Guardianship Tribunal made "under" s 25M. The first issue to be determined is whether the Appeal Panel has jurisdiction to review that decision.

5 Section 118B(1) of the ADT Act specifies the grounds on which an external appeal, such as an appeal under s. 67A of the Guardianship Act, can be made:

118B Grounds for external appeals and time and procedure for making appeals

(1) An external appeal may be made:

(a) as of right, on any question of law, or

(b) by leave of the Appeal Panel hearing the appeal, on any

other grounds.

6 Although SH said that his appeal was confined to an appeal on the merits, he was not legally represented. Before accepting that submission at face value, we listened to Mr Free’s submissions on his assessment of the grounds of appeal. He said that while SH had not specified particular grounds of appeal, the grounds could be characterised as:
(a) whether the Guardianship Tribunal erred by making a financial management order in respect of SI’s estate; and

(b) whether the Guardianship Tribunal erred by committing SI’s estate to the management of the Protective Commissioner, as opposed to her son, SH, the appellant in these proceedings.

Issues
(a) Is a decision of the Guardianship Tribunal to appoint a “suitable person” as the manager of an estate a decision which is appealable to the Appeal Panel?

(b) If so, has the Guardianship Tribunal made an error of law in relation to either of the grounds of appeal set out above?

(c) If not, should the Appeal Panel grant leave for the appeal to be heard on the merits of the Guardianship Tribunal’s decision?

Appealable decision?

7 Introduction. Section 67A(l) provides that an appeal may be made to the Appeal Panel from certain decisions of the Guardianship Tribunal. One of those decisions is a decision made "under" s 25E. There is no mention of decisions made “under” s 25M in s67A(1). The issue is whether the decision to appoint the Protective Commissioner as financial manager constitutes a separate decision made under s 25M, or forms part of a broader decision made under s 25E. If the determination by the Guardianship Tribunal that the Protective Commissioner be appointed as financial manager can be said to constitute a separate decision made "under" s. 25M, then the Appeal Panel lacks jurisdiction to consider this appeal, in so far as it relates to that determination.

8 Arguments against jurisdiction. The structure of the Guardianship Act supports the view that the making of a financial management order and the appointment of a suitable person to manage the estate involve two distinct steps. Section 25E(1) provides that the Tribunal may order that the estate of a person be subject to management under the Protected Estates Act 1983. Section 25M(1) provides that:

If the Tribunal makes a financial management order in respect of the estate (or part of the estate) of a person, the Tribunal may, by order:

(a) appoint a suitable person as manager of that estate, or

(b) commit the management of that estate to the Protective Commissioner.

9 The appointment of a person to manage the estate requires a separate order from the order under s 25E that the estate of a person be subject to management. In this case the Tribunal made two separate orders, one under s 25E and the other under s 25M. Those provisions are in contrast to the provisions for the making of a guardianship order and the appointment of a guardian. Section 14 of the Guardianship Act provides that the Guardianship Tribunal may "make a guardianship order" in respect of a person the subject of an application. There is no separate provision conferring on the Guardianship Tribunal power to make an order appointing a particular person as guardian. Section 16(1)(a) provides that a "guardianship order shall appoint a person who is of or above the age of 18 years as the guardian of the person of the person under guardianship”. Accordingly, a decision by the Guardianship Tribunal to appoint a particular person as a guardian is an aspect of the decision made under s 14 to make a guardianship order. As s. 67 A(1) provides that a person may appeal to the Appeal Panel from a decision of the Guardianship Tribunal made “under” s 14, a person who is dissatisfied with the appointment of a particular person as guardian may appeal against that aspect of the Guardianship Tribunal's decision.

10 Arguments in favour of jurisdiction. There are arguments for treating a decision to appoint a manager as an aspect of the decision to make a financial management order. Once the Guardianship Tribunal has made a financial management order in respect of an estate, it must appoint someone as manager of that estate. While s. 25M is expressed in permissive terms, it is a discretionary power that the Guardianship Tribunal must exercise once it has made a financial management order in respect of an estate. That is because an estate requires a manager if the financial management of the estate is to be effected. Accordingly, once a decision is made under s 25E to make a financial management order, it is a necessary consequence or incident of that decision that the Guardianship Tribunal must make a decision pursuant to s 25M to appoint an appropriate manager. In this sense, the decision to select a manager can be described as a consequential or incidental part of the decision made "under" s. 25E.

11 This broad interpretation of a decision made “under” s 25E is consistent with a purposive approach to the construction of s. 67A(l). (See s 33 of the Interpretation Act 1987.) Parliament intended to confer on citizens a broad right of appeal in respect of decisions made by the Guardianship Tribunal regarding financial management orders. A narrow construction would mean that an appellant would not be able to challenge the decision of the Guardianship Tribunal regarding the selection of the manager of the estate. Such an interpretation would not be in accordance with the purpose of the Guardianship Act.

12 It is also relevant that if the Guardianship Tribunal is asked to review its appointment of the manager of a protected person’s estate, that decision is appealable to the Appeal Panel. On review, the Guardianship Tribunal may confirm or revoke the appointment and appoint another person as manager: s 25U. Section 67A(1) provides that a person may appeal to the Appeal Panel from a decision of the Guardianship Tribunal made under s 25U. Reading ss. 25S, 25U and 67 A(l) together, it can be seen that the Guardianship Act contemplates that after the Guardianship Tribunal has made an order appointing a person (whether the Protective Commissioner or another person) as manager of an estate, the Guardianship Tribunal may undertake a review of that appointment and a person who is dissatisfied with the outcome of that review may appeal the decision to the Appeal Panel. Given this facility when the Guardianship Tribunal has reviewed its own decision to appoint a particular manager, it would be curious if the Act did not allow for an appeal to the Appeal Panel in respect of the original decision to appoint a particular manager.

13 Conclusion. Reading the Act as a whole, and applying a purposive rather than a literal construction to s 67A(1), we are satisfied that the Appeal Panel has jurisdiction to hear an appeal from the Guardianship Tribunal’s decision to appoint the Protective Commissioner as the manager of SI’s estate.

Did the Guardianship Tribunal make an error by making a financial management order in respect of SI’s estate?

14 Section 25E(I) of the Guardianship Act provides that the Guardianship Tribunal may order that the estate of a person be subject to management under the Protected Estates Act 1983. Section 25G specifies the grounds on which a financial management order may be made:

"25G Grounds for making financial management order

The Tribunal may make a financial management order in respect of a person only if the Tribunal has considered the person's capability to manage his or her own affairs and is satisfied that:

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

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

…

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

15 In its reasons for decision, the Guardianship Tribunal correctly noted that it had to be satisfied of these three matters in order to make a financial management order. The reasons for decision also indicate that, after an examination of the evidence, the Guardianship Tribunal applied these tests and was satisfied of the relevant matters before making the financial management order in respect of SI.

16 We agree with Mr Free that there is nothing in the Guardianship Tribunal's reasons for decision that suggests that the Guardianship Tribunal erred in the way it characterised the relevant legal tests or applied the principles to the facts as found in relation to SI. In any event, we did not understand SH to be concerned about the making of the financial management order. Rather, he was concerned about the fact that the Guardianship Tribunal appointed the Protective Commissioner rather than himself to manage his mother’s financial affairs.

Did the Guardianship Tribunal make an error by committing SI’s estate to the management of the Protective Commissioner?

17 The Guardianship Tribunal's reasons for the decision to commit the management of SI’s estate to the Protective Commissioner were as follows:

In circumstances where [SH] has an equitable interest on the property and there is potentially a conflict in their interests in the matter, the Tribunal considered that the appropriate course is to appoint the Protective Commissioner.
18 As to the reference to SH having an "equitable interest" in the property, this is apparently explained in the earlier, related decision of the Guardianship Tribunal made on 17 January 2005. At p 3 of its reasons dated 17 January 2005, the Guardianship Tribunal said:
"In the context of [SH’s] grandmother's loss of pension entitlement, monies were borrowed against the security of the house to maintain her in the nursing home. At the time of her death a sum of some $29,000 to $30,000 was outstanding under this loan.

A sum of some $56,000 was raised to cover that debt and additional funds and on the basis of his servicing the mortgage [SH] and his mother entered into an agreement whereby in the event of the sale of the property he would receive a one quarter share of the net proceeds and his mother the remaining three quarters.

Mr [SH] asserts that his copy of that agreement had been removed from his possession."

19 It is not clear whether the Guardianship Tribunal based its conclusion that SH had an "equitable interest" in the property on the existence of the agreement or on an equitable principle relating to his contributions to the repayment of the mortgage.

20 Section 25M confers on the Guardianship Tribunal a discretion to appoint either a “suitable person” or the Protective Commissioner as the manager of the protected person’s estate. Subject to the general principles of administrative law regarding the lawful exercise of discretionary powers, it is a matter for the Guardianship Tribunal to determine who is to be the manager of the estate. (See House v The King (1936) 55 CLR 499.) However, the Court of Appeal has commented on the interpretation of an analogous provision, s 22 of the Protected Estates Act 1983. In Holt v Anor v Protective Commissioner (1993) 31 NSWLR 227, the Court of Appeal (Kirby P, Sheller JA and Windeyer A-JA concurring) was hearing an appeal against a decision of Powell J dismissing an application from the appellants that they be appointed manager of their brother’s estate in place of the Protective Commissioner. The relevant provision was s 22 of the Protected Estates Act 1983, which is in similar terms to s 25M of the Guardianship Act. That provision states that:

The Court may, by order, appoint a suitable person as manager of the estate of a person in respect of whom it has made an order under section 13 or 21C or may, by such an order, commit the management of the estate of any such person to the Protective Commissioner.
21 When interpreting that provision, the Court of Appeal said at p 238 - 239, that:
It will not have escaped attention that when parliament enacted s 22 of the Act (above) it provided first that a "suitable person" should be appointed as manager of the estate of a protected person and only secondly that the management of that estate should be committed to the Protective Commissioner. This is a sensible hierarchy of choices. In many estates of modest size it will be appropriate where there is no risk of conflict of interest and duty, and where a relationship of love or affection is established, to reflect in the statutory appointment the form of management which for millennia, in primitive societies as in civilised communities, has been followed when a family member is found to be incapable of managing his or her affairs. It is normal then for the family to step in. The courts conserved their intervention to cases where there is no family or where no family are willing to act or for special reasons of incompetence or conflict of interest it is unsuitable to appoint a family member. There is a danger in the administration of the Act of overlooking not only this natural order of things but the way in which parliament has reflected it in the terms of s 22 of the Act.
22 We interpret this passage as meaning that the Tribunal should look first to the possibility of appointing a family member or other suitable individual to be the manager of the protected person’s estate. Only if there is no such person available or those who are available are not suitable, for whatever reason, should the Protective Commissioner be appointed.

23 The Court of Appeal went on to remark that:

Ordinarily, a person who would face a conflict of interest and duty would not be appointed a manager of a protected person’s estate. However, in some family situations, inter-related property interests may present such conflicts. Sometimes, they will be more apparent than real. They do not necessarily present an absolute bar to appointment as a manager for otherwise this would exclude from consideration a range of family members in every other way appropriate.” (Emphasis added.)
24 The pros and cons of appointing a family member as opposed to the Protective Commissioner are set out at page 242 of the judgement.

25 When exercising its discretion to appoint a manager, the Guardianship Tribunal must abide by the principles of administrative law governing the exercise of it powers. If the Guardianship Tribunal did not look first to the possibility of appointing a suitable person to be the manager of the protected person’s estate or considered any potential conflict of interest to be an “absolute bar” to SH’s appointment as a manager, then it will have made an error of law.

26 The Tribunal’s reasons for appointing the Protective Commissioner, rather than SI, are extremely short. Nevertheless, it is clear that the Guardianship Tribunal considered whether SH was a suitable person to be appointed as manager of his mother's estate. While the potential conflict of interest between SH and his mother was the reason for appointing the Protective Commissioner, the Guardianship Tribunal did not consider itself bound to appoint the Protective Commissioner merely because of the existence of that potential conflict. Despite the absence of any discussion about the pros and cons of appointing SH rather than the Protective Commissioner, this is not a case where the Guardianship Tribunal's decision breached any of the general principles of administrative law, or any of the principles enunciated by the Court of Appeal in Holt v Anor v Protective Commissioner (1993) 31 NSWLR 227. While it would have been desirable for the Guardianship Tribunal to have explored the nature and extent of any conflict and explained why that potential conflict made SH an unsuitable manager, its failure to do so does not amount to an error of law.

Whether leave should be granted to allow the appeal to be made on grounds other than error of law

27 Given that the appeal does not raise a question of law, the next issue is whether we should grant leave to allow the appeal to be made on grounds other than error of law. In previous external appeals from decisions of the Guardianship Tribunal the Appeal Panel has outlined the relevant principles which govern the granting of leave under s 118B(1)(b). In JT and Anor v Protective Commissioner & Ors [2004] NSWADTAP 13, the ADTAP held, at [32]:

Having decided that the Tribunal made no error of law, the Appeal Panel's task is to determine whether leave should be given to appeal against the merits of the Tribunal's decision. The ADT Act does not contain any guidance on the relevant matters to be taken into account in determining whether leave should be granted. The Supreme Court has provided some guidance on this question in the cases of K v K [2000] NSWSC 1052; S v S [2001] NSWSC 146 and Re R [2000] NSWSC 886. Those cases interpreted s 67 of Guardianship Act 1987 which is the equivalent provision to s 67A in relation to appeals from Tribunal decisions to the Supreme Court. In K v K , Young J observed at [10] that "it has never been clearly decided what the circumstances are that should lead the Court to grant leave to appeal under s 67", but went on to make a number of observations on this point: see para [10]-[15). After considering the relationship between the Court and the Tribunal, Young J observed at [15]:
It would seem to me that s 67 of the Guardianship Act operates so that broad questions of administration and policy and the applicability of policy to individual cases, even if they are not questions of law, may well be subjects on which the Court will grant leave to appeal. On the other hand, it is very unlikely that the Court will grant leave to appeal when there is a problem with a fact finding exercise unless there are clear indications that the Tribunal has gone about that fact finding process in such an unorthodox manner or in a way which is likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed."
28 In the paragraphs immediately preceding the passage extracted above from K v K [2000) NSWSC 1052 at [12] and [13], Young J made the following observations:
I think it is germane when considering whether to give leave to appeal, to work out the basic relationship between the Tribunal and the Court.

Up until relatively recently the Supreme Court, with its inherent power inherited from the Lord Chancellor's jurisdiction in England in the 18th century, had unlimited authority to deal with the persons and estates of incapable persons for their own benefit. It was thought proceedings before the Court involved expense which could be avoided and it would be more appropriate for these matters ordinarily to be dealt with by a tribunal which basically consisted of a lawyer with some knowledge of the relevant Acts and of the law of evidence, a doctor, and a person who had practical experience with the problems of people with mental disabilities. The legislature thus under the Guardianship Act committed to the Tribunal most, but not all the same area of jurisdiction that was within the Court's jurisdiction. It preserved the court's jurisdiction under s 31 and other parts of the Act, and gave the Court supervisory and appellant jurisdiction under s 67.

As I said in Re R, it is probably inaccurate to assess the Tribunal as being a specialist tribunal, but it is certainly a tribunal to which the legislature has committed the primary working out of the Guardianship Act and whose decisions are to be given great weight. When the Court does review a decision of the Tribunal, it does, as Lord Denning said in Retarded Children's Aid Society v Day [1978) ICR 437,443, deal with the matter broadly and fairly and does not interfere if the Tribunal members have directed themselves properly and fairly on the facts and have not gone wrong in law. However, a function of the Court is to ensure that guidance on the proper interpretation of the law is given to the Tribunal and the parties appearing before it so that the Tribunal is integrated into the machinery of justice applying the law of incapable persons as administered by the Court. Thus, there will not be inconsistent rulings between tribunals differently constituted, or between the Tribunal and the Court.

29 The question is whether the present appeal raises "broad questions of administration and policy and the applicability of policy to individual cases". No doubt the Guardianship Tribunal's approach to deciding whether to appoint the Protective Commissioner or some other person as the financial manager of an estate does raise broad questions of policy. However, those questions were comprehensively addressed in Holt v Anor v Protective Commissioner , (1993) 31 NSWLR 227. There is no need for the Appeal Panel to provide guidance on the proper interpretation of s 25M. The question of determining the most appropriate financial manager is best left to the Guardianship Tribunal. For those reasons, we do not grant leave to allow the appeal to be made on grounds other than error of law.

Review option

30 It would be open for SH to apply to the Guardianship Tribunal for a review of its decision to appoint the Protective Commissioner as financial manager. Subject to certain limitations set out in the Guardianship Act, the Guardianship Tribunal would be obliged to undertake such a review. Unlike an appeal to the Appeal Panel, such a review would enable the Guardianship Tribunal to take into account factors which have emerged after the Guardianship Tribunal's original decision, such as administrative problems with the management of the estate by the Protective Commissioner and the distress which SI is said to have suffered as a result of the Protective Commissioner's appointment.

Orders

Appeal dismissed