TC v Public Guardian & Ors

[2006] NSWADTAP 15

Appeal Panel - External

CITATION:	TC v Public Guardian & ors [2006] NSWADTAP 15
PARTIES:	APPLICANT TC FIRST RESPONDENT Public Guardian SECOND RESPONDENT Protective Commissioner THIRD RESPONDENT TD FOURTH RESPONDENT TE DECISION MAKER Guardianship Tribunal
FILE NUMBER:	058016
HEARING DATES:	30/11/05
SUBMISSIONS CLOSED:	12/09/2005
DATE OF DECISION:	04/05/2006
BEFORE:	Hennessy N - Magistrate (Deputy President); Leal S - Judicial Member; Mericourt B - Non Judicial Member
CATCHWORDS:	Financial management order - making - Guardianship order - making - Power of Attorney - review of
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	C/ 30776
DATE OF DECISION UNDER APPEAL:	08/04/2005
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Guardianship Act 1987 Powers of Attorney Act 2003
CASES CITED:	Applicant Veal of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005]HCA 72 GM v Guardianship Tribunal & Ors; GM v Protective Commissioner & Ors [2003] NSWADTAP 59 IF v IG & Ors [2004] NSWADTAP 3 J v Lieschke (1987) 69 ALR 647 KA v Public Guardian & Ors [2004] NSWADTAP 25 Kioa v West (1985) 159 CLR 550 KV v Protective & Ors; KW & Ors v KV & Ors (No.2) [2004] NSWADTAP 48 Moore v Guardianship and Administration Board [1990] 902 Muin v Refugee Review Tribunal (2002) 76 ALJR 966 Nicopoulos v Commissioner for Corrective Services 2004 NSWSC 502 R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 Re Minister for Immigration and Multicultural Affairs Ex parte Miah (2001) 206 CLR 57 Re Refugee Tribunal; ex parte Aala (2000) 75 ALJR 52
REPRESENTATION:	APPLICANT In person THIRD RESPONDENT B Hassett, solicitor FOURTH RESPONDENT M Dixon, solicitor DECISION MAKER E Cho, solicitor
ORDERS:	1. The decision of the Guardianship Tribunal made on 4 August 2005, to dismiss the application by TC (the nephew) for a guardianship order in relation to TD is set aside; 2. The decision of the Guardianship Tribunal made on 4 August 2005, to dismiss the application by TC (the nephew) for a financial management order in relation to TD is set aside; 3. The decision of the Guardianship Tribunal made on 4 August 2005, to dismiss the application for review of the enduring power of attorney made by TD on 16 December 2001, is set aside; 4. Each of the applications by TC (the nephew) is remitted to the Guardianship Tribunal to be heard and decided again, with the hearing of further evidence, if relevant.

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

Section 126 provides

(1A) This section applies only to the following:


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

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

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

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

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


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

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

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

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


whether before or after the proceedings are disposed of.

Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.

(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.

(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Introduction

1 TD is a woman in her late 70s who lives in a nursing home in rural New South Wales. She has a brain injury as a result of a stroke and has difficulty communicating. At the end of 2001, TD appointed her husband as her power of attorney. He died a few months later and the alternate attorney, TD’s step-son, is currently her attorney. TD’s nephew applied to the Guardianship Tribunal for a guardianship order and a financial management order in relation to his aunt. He also applied to the Guardianship Tribunal for a review of the enduring power of attorney held by TD’s step-son. In these reasons, we will refer to TD’s nephew as “the nephew” and TD’s step-son as “the step-son”.

2 The reason for the nephew’s applications to the Guardianship Tribunal was that there was a dispute between him and the step-son in relation to where TD should live and in relation to the management of her financial affairs. The nephew said that his aunt had expressed a wish to move to Sydney so that her sister and other relatives and friends could visit her regularly. The step-son, who lives in South Australia, opposes that move. The nephew also said that the step-son refuses to comply with TD’s wishes about how money she inherited should be used. According to the nephew, TD cared for one of her sisters, who has a mental impairment, for 35 years. The nephew said that TD has expressed her wish that her inheritance from another sister’s estate should be used for the benefit of the sister who has a mental impairment. The step-son has not given that money to TD’s sister. There is also a dispute over whether TD had a bank account containing $22,000 and if so, what happened to that money.

3 The Guardianship Tribunal dismissed all three of the nephew’s applications. That means that the status quo remains in relation to TD’s financial affairs and her accommodation. TD’s nephew appealed to the Appeal Panel against the Guardianship Tribunal’s decisions.

Appeal Panel’s jurisdiction

4 The Appeal Panel has jurisdiction to hear appeals against each of the Guardianship Tribunal’s decisions. (See s 67A of the Guardianship Act 1987 and s 41 of the Powers of Attorney Act 2003.) Section 118B(1) of the Administrative Decisions Tribunal Act 1997 (ADT Act) specifies the grounds on which an external appeal may 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.
5 The nephew appealed on questions of law and also sought leave to appeal on other grounds.

Parties and representation

6 The nephew represented himself at the hearing. The step-son was legally represented by Ms Dixon. The Tribunal appointed Ms Hassett of the Aged-Care Rights Service to represent TD at the hearing. Ms Hassett prepared a report containing a factual description of TD’s financial and personal circumstances. Ms Hassett then expressed the opinion that she did not believe it to be in TD’s interests to be left in a nursing home with all decisions concerning her welfare being made by the staff employed there. She recommended to the Appeal Panel that a guardian be appointed to make decisions about where TD should live. Her preference was for the nephew to be appointed as TD’s guardian. Ms Hassett also recommended that the Protective Commissioner be appointed to manage TD’s financial affairs. We appreciate Ms Hassett’s point of view, but without any analysis of the legality or merits of the Guardianship Tribunal’s decision, it is of little relevance to the issues that arise in the appeal.

7 Neither the Protective Commissioner, nor the Public Guardian, wished to present a case or 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.

Guardianship application.

8 Grounds of appeal. In relation to the Guardianship Tribunal’s decision not to make a guardianship order, the nephew said that someone needs to make a decision about where TD should live because there is a dispute between him and the step-son about that matter and it needs to be resolved. The nephew said that the Guardianship Tribunal did not give sufficient weight to the conversation he said TD had with himself and his mother about moving to Sydney. Even though TD was happy with the nursing home when she first went to live there, the nephew believes that she would prefer to live in Sydney where she can be visited and supported by her sisters.

9 Step- son’s submissions. The step-son submitted that the decision not to make a guardianship order does not involve an error of law. According to him, there was insufficient evidence before the Guardianship Tribunal to suggest that TD would gain any benefit from moving to Sydney.

10 Legislative framework. In order to deal with this ground of appeal, it is necessary to set out the legislative framework for the making of a guardianship order and to identify the Guardianship Tribunal’s reasons for not making an order. In IF v IG & Ors [2004] NSWADTAP 3 at [24] the Appeal Panel clarified the two step process that the Guardianship Tribunal must undertake when deciding whether to make a guardianship order under s 14 of the Guardianship Act 1987 (Guardianship Act). That section gives the Guardianship Tribunal a discretion to make a guardianship order if “the Tribunal is satisfied that the person is a person in need of a guardian. . .” Consequently, the first step is for the Guardianship Tribunal to ask itself whether the subject person is a “person in need of a guardian”. That phrase is defined in s 3 of the Guardianship Act, to mean “a person who, because of a disability, is totally or partially incapable of managing his or her person.” The second step is for the Tribunal to decide whether or not to exercise its discretion to make a guardianship order. In accordance with s 14(2), when considering whether or not to make a guardianship order, “. . .the Tribunal shall have regard to:

(a) the views (if any) of:
(i) the person, and

(ii) the person’s spouse, if any, if the relationship between the person and the spouse is close and continuing, and

(iii) the person, if any, who has care of the person,

(b) the importance of preserving the person’s existing family relationships,

(c) the importance of preserving the person’s particular cultural and linguistic environments, and

(d) the practicability of services being provided to the person without the need for the making of such an order.”

11 Guardianship Tribunal’s reasons . Under the heading “What must be proved?” the Guardianship Tribunal wrote that:
Before the Tribunal can make a guardianship order it must be satisfied that:

1. [TD] is a person with a disability within the meaning of the Guardianship Act;

2. because of that disability/those disabilities [TD] is totally or partially incapable of managing her person; and

3. there is a need for a guardianship order to be made in relation to [TD].

12 The Guardianship Tribunal concluded that TD has a disability and as a consequence is unable to make informed decisions in order to manage her person. Having correctly completed the first step in the process, the Tribunal went on to ask itself whether there was a need for a guardianship order. The Guardianship Tribunal appears to have adopted the test of whether “there is a need for a guardianship order” as a shorthand way of asking whether the discretion to make a guardianship order should be exercised. While there is nothing wrong with using a shorthand expression of this kind, that particular expression is confusing because the phrase “a person in need of a guardian” is defined in s 3 to mean “a person who, because of a disability, is totally or partially incapable of managing his or her person.” Asking that question is the first step in the process, not the second step. It would be less confusing if the Guardianship Tribunal used a different shorthand expression for the second step. For example, the Guardianship Tribunal could ask itself whether, having regard to the considerations in s 14(2), it should make a guardianship order.

13 Appeal Panel’s conclusion. Merely asking itself the wrong question does not necessarily constitute an error of law if the Guardianship Tribunal answered the correct question. The following passage reveals that the Tribunal did not answer the question as to whether, having regard to the mandatory considerations in s 14(2) and any other relevant matters, it should make a guardianship order. Instead it placed itself in the shoes of a possible guardian and determined that it would not exercise a guardian’s power to change TD’s place of residence.

The evidence before the Tribunal indicated that when [TD] was more cognitively aware she had indicated that she was very happy with the placement. It was a nursing home chosen by [TD’s] late husband and he was also very happy with the placement.

The evidence from the nursing staff and the [step-son and his wife] is that [TD] no longer communicates and it is very unclear if she has any comprehension at all. The claim by [the nephew’s mother] and [the nephew] that TD expressed clear wishes about wanting to move and not having friends in the nursing home is very hard to reconcile with this. There is evidence from the [Director of Nursing] that [TD] nods inappropriately on occasions. [The nephew] did concede that some of her views were expressed by questioning and nodding. Having regard to all the evidence the Tribunal is unable to find [TD] was able to express a clear view in relation to her accommodation.

The Tribunal considered that it was not appropriate to appoint a guardian to make a decision about where [TD] lives. The issue has been considered by [TD] and her husband when she had greater cognitive capacity. They were pleased with the decision. There is insufficient evidence to suggest that [TD] would gain any benefit from a move. The Tribunal therefore found that there was no current need for the appointment of a guardian.

14 By answering the wrong question, the Guardianship Tribunal misconstrued its statutory function. It is not the Guardianship Tribunal’s function to make a guardian’s decision; its role is to determine whether to appoint a guardian once the mandatory pre-condition is met (i.e. a person is in need of a guardian) and after considering the matters set out in s 14(2) and any other relevant matters.

15 The nephew also submitted that the Guardianship Tribunal did not give sufficient weight to the conversation he said TD had with himself and his mother about moving to Sydney. As it is not the Guardianship Tribunal’s role to determine where TD should live, that conversation is only relevant to the extent that it sheds light on TD’s or the nephew’s views about the appointment of a guardian. Finally, the nephew’s submission that his aunt would prefer to live in Sydney where she can be visited and supported by her sisters, is an expression of his view, which the Guardianship Tribunal was bound to take into account if it considers him to be a carer.

Financial management application

16 Grounds of appeal. The grounds of appeal in relation to the application for a financial management order mainly concern alleged breaches of the rules of procedural fairness. Such breaches, if made out, constitute errors of law. The Guardianship Tribunal’s acceptance of evidence from the step-son and the Director of Nursing relate to alleged errors in the fact finding process. We deal with the nephew’s grounds of appeal in relation to alleged errors of fact under the heading “Leave to Appeal on other Grounds” below at [45].

17 Legislative framework and Guardianship Tribunal’s reasons. The Guardianship Tribunal correctly identified the three matters about which it had to be satisfied before making a financial management order. Under s 25G of the Guardianship Act:

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.

18 The Guardianship Tribunal found that TD was not capable of managing her financial affairs. The nephew did not dispute that finding. The Guardianship Tribunal then turned to consider whether there was a need for another person to manage those affairs on behalf of TD. The Guardianship Tribunal concluded that that there was “no evidence to suggest that those affairs are being mismanaged.” Finally, the Guardianship Tribunal found that because the nephew was proposing that funds held by TD be given to TD’s sister, it was not in TD’s best interests that the order be made.

19 Alleged breaches of procedural fairness. The nephew submitted that he was denied procedural fairness on three counts:

a) the Guardianship Tribunal did not give him access to TD’s financial records;

b) the Guardianship Tribunal did not give him access to the report from the Director of Nursing; and

c) the Guardianship Tribunal did not allow him to question the Director of Nursing or the step-son about their evidence.

20 The Guardianship Tribunal did not give the nephew the financial records on the basis that their confidential nature outweighed any obligation to comply with the rules of procedural fairness. Even though the Guardianship Tribunal did not decide that the report from the Director of Nursing was confidential, it did not give the nephew a copy. In addition, the nephew said that the Guardianship Tribunal did not give him an opportunity to question the Director of Nursing about the content of her report or statements she made concerning TD’s financial affairs; or question the step-son about his evidence.

21 Guardianship Tribunal’s Reasons. The Guardianship Tribunal did not give any reasons for not disclosing the report from the Director of Nursing or not allowing the nephew to question the Director of Nursing or the nephew directly. We assume that this is because it is not the Guardianship Tribunal’s usual practice to provide copies of such documents to parties or to allow parties to question one another directly. The Guardianship Tribunal’s reasons for not disclosing the financial management records are set out at pages 10 and 11 of its decision. Although those reasons are lengthy, it is useful to set them out in full:

The [step-son] had produced [TD’s] financial records to the Tribunal. The Tribunal put [the nephew] on notice that having regard to his unsubstantiated allegations and the documents there did not appear to be any evidence of any financial mismanagement or misappropriation by [the step-son]. The Tribunal then explicitly asked [the nephew] to provide details of any alleged misconduct.

[The nephew] again reiterated that he had no details to assess how [the step-son] was managing the funds. He said that [the step-son] was not managing the funds in accordance with [TD’s] wishes as she wanted her sister . . . to have the $140,000 which she was to receive from the estate of (another sister). He also said [TD] wanted her sister to have $22,000 which was in a bank account earmarked for her . . . . He also wanted to take (sic) have access to [TD’s] financial records in order to show his accountant to see if they could find any anomalies.

The nature of the guardianship jurisdiction is a protective one. The Guardianship Tribunal is legislatively required to consider the “best interests” of a person in respect of whom an application has been made. The jurisdiction is such that necessarily personal and sensitive information about individuals is provided to the Tribunal in the course of dealing with an application. The person with the disability is often unable to object to the disclosure of documents. [TD] was unable to make any such objection as by virtue of her disability she was unable to participate in the hearing. There is a tension between the obligation of the Tribunal to accord natural justice and the need to protect the privacy of the person about whom the information relates.

A person is a party by virtue of having made an application. [The nephew] has no other legal relationship to [TD]. The evidence of [the Director of Nursing] suggests that they did not have a close relationship as she had not met [the nephew] in the 6 years [TD] has been in the nursing home.

An applicant has standing pursuant to section 9 of the Act by virtue of having “a genuine concern for the welfare of the person”. The Tribunal does not usually require applicant’s (sic) to establish standing.

In this matter [the nephew] disclosed no evidence that the [step-son] had been mismanaging [TD’s] financial affairs. There was no evidence at all before the Tribunal which was sufficient to raise any concern about the management of [TD’s] financial affairs and any consequent interest which required protection. The [nephew’s] case amounted to no more than unsubstantiated allegations. There was no evidence [TD] had been disadvantaged financially be (sic) her [step son’s] actions.

[The nephew] did not establish any adverse interests which required protection in relation to himself. Such an application is made in the interests of the person. As stated above, the Tribunal must balance the right to natural justice against the protective nature of the jurisdiction. In Kioa v West 62 ALR 321 Mason J at 347 stated that, “what is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject matter, and the rules under which the decision maker is acting.” He goes on to state:

In this respect the expression “procedural fairness” more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, that is, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations.
The circumstances of this matter were such that the [nephew] failed to establish any substance to the application for financial management. The application amounted to a mere fishing expedition. The Tribunal must therefore balance the right to privacy of a person in a protective jurisdiction as against the right to procedural fairness by disclosure of documents, to allow the [nephew] to see whether he can make a case only after viewing the documents. In these circumstances the Tribunal did not accept that this required the [nephew] to sight [TD’s] financial documents.
Rules of procedural fairness.

22 There is no specific provision in the Guardianship Act which obliges it to afford parties procedural fairness. In several cases the Appeal Panel has addressed the questions of whether the Guardianship Tribunal is obliged to comply with the rules of procedural fairness and what the Guardianship Tribunal must do in order to comply with those rules. (See, for example, GM v Guardianship Tribunal & Ors; GM v Protective Commissioner & Ors [2003] NSWADTAP 59 and KA v Public Guardian & Ors [2004] NSWADTAP 25 and KV v Protective & Ors; KW & Ors v KV & Ors (No.2) [2004] NSWADTAP 48.) For the reasons set out in those cases, it is clear that the Guardianship Tribunal’s duty and power to deal with all three applications in this case is “conditioned upon the Tribunal’s observance of the requirements of procedural fairness.” The more difficult question is to determine “the content to be given to that obligation to accord procedural fairness”. ” (Applicant Veal of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005]HCA 72 at [10].) However, the common law rules in this area are relatively well settled. The hearing rule, which is an element of procedural fairness, requires that a decision-maker hear a person before making a decision affecting their interests. McHugh J spoke generally of this rule in Re Refugee Tribunal; ex parte Aala (2000) 75 ALJR 52 at 73:

One of the fundamental rules of the fair hearing doctrine is that a decision-maker should not make an adverse finding relevant to a person's rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided. It is a corollary of the warning rule that a person who might be affected by the finding should also be given the opportunity to adduce evidence or make submissions rebutting the potential adverse finding ( Mahon v Air New Zealand Ltd [1984] AC 808 at 820-821.)
23 The content of the hearing rule must be “appropriate and adapted to the circumstances of the particular case.” ( Kioa v West (1985) 159 CLR 550 per Mason J at 585.) The Guardianship Tribunal’s jurisdiction is a protective one. That means that one of its primary aims is to protect vulnerable people from neglect, abuse and exploitation. (See s 4(g) of the Guardianship Act .) But that is not its only obligation. The Guardianship Tribunal is also obliged to ensure that people who are parties to applications receive a fair hearing from an impartial decision-maker. Hearings are conducted in an informal, investigatory style. However, while the nature of the jurisdiction is relevant to the content of the hearing rule, the Guardianship Tribunal is nevertheless obliged to comply with the minimum content of that rule which is essentially to disclose to parties who have an interest in the proceedings, the substance of any adverse or prejudicial information and give them a reasonable opportunity to respond. (For a fuller discussion of this issue, see, KV v Protective & Ors; KW & Ors v KV & Ors (No.2) [2004] NSWADTAP 48.)

24 In KA v Public Guardian & Ors [2004] NSWADTAP 25, the Appeal Panel summarised the relevant principles of the “hearing rule” of procedural fairness. In the light of these principles, the following questions arise:

(a) Whether the nephew had a relevant interest, right or legitimate expectation that stood to be affected by the Tribunal’s decision?

(b) Whether the information in the documents was “credible, relevant and significant” material adverse to the nephew?

(c) Whether the substance of the material was put to the nephew in circumstances where he had an opportunity to respond?

(d) Whether there were any exceptional circumstances which mean that the document should not be disclosed?

25 Interests, rights or legitimate expectation ? The Guardianship Tribunal’s answer to the first question appears to be that the nephew had no such interest. They said that, “[The nephew] did not establish any adverse interests which required protection in relation to himself.” The interest does not have to be “adverse”- it is the document or other material in dispute that has to be “adverse” to the person’s interests in order for the rules of procedural fairness to apply. Putting that point to one side, the question of whether or not a person’s interests are affected relates, to some extent, to the question of whether that person has “standing” to make the application. As the Guardianship Tribunal pointed out, an application for a guardianship order may be made by “any other person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person”: s 9. The same test applies to an applicant for a financial management order: s 25I(b). The Guardianship Tribunal said in its reasons for decision that it does not usually require an applicant for a financial management order to establish “standing”. Of course, the Guardianship Tribunal must satisfy itself that an applicant has standing before it proceeds to hear an application. However, its apparent failure to do so in this case is not in issue and we have assumed for the purposes of determining this appeal, that the nephew did have standing to make the application.

26 While most standing requirements in legislation prevent a person from litigating about the violation of another person’s rights or interests, applicants for guardianship and financial management orders (other than the subject person) are doing just that. Because the subject person is unable to manage his or her personal and/or financial affairs, there is a public interest in someone else who “has a genuine concern” for their welfare, making an application. Consequently, in many cases, the applicant will have no separate interest from the interests of the subject person. The nephew himself does not have a relevant interest, right or legitimate expectation that stood to be affected by the Tribunal’s decision. But he was concerned about TD’s welfare and said he had her interests in mind when making the application. Is the fact that the nephew has a genuine concern for the interests of the subject person, sufficient to entitle him to the benefit of the rules of natural justice?

27 While we were unable to find any direct authority on this point, the decision of the Supreme Court in Moore v Guardianship and Administration Board [1990] 902 provides some assistance. In that case the Victorian Guardianship and Administration Board’s failed to provide the plaintiff, who was the subject person, and Mr Shellard, a person assisting her, with an opportunity to respond to prejudicial material. Gobbo J held that that constituted a breach of natural justice. At 912, his Honour said:

It was submitted that Mr Shellard was not entitled to complain of absence of natural justice as he was not the person in respect of whom an administration order was made. As to the plaintiff herself, it was submitted that she made no objection. These were bold submissions to say the least. Mr Shellard would appear to have acted as the plaintiff’s representative at the hearing with the implied consent of the plaintiff. As such he was entitled to the protection of the rules. If Shellard was not the plaintiff’s representative, I am nonetheless not disposed to accept an argument that the rules do not apply. In my view the rules of natural justice do not exist only for particular parties - they control the hearing and the way the board adjudicates the matter.
28 Even though the nephew does not have any interest separate from that of his aunt, TD, the Tribunal is still obliged to afford him procedural fairness. In a protective jurisdiction such as exists under the Guardianship Act , the “welfare and interests” of the subject person “should be given paramount consideration”: s 4(a). The subject person is often not present at the hearing and, in most cases, lacks the capacity to manage his or her personal and/or financial affairs. In those circumstances it is crucial that that person’s interests be identified and protected. That is achieved under the Guardianship Act by allowing a person with “a genuine concern for the welfare of the person” to make applications to the Tribunal. Once that person satisfies the Guardianship Tribunal that he or she is such a person, his or her legal interests are at stake. The entitlement to procedural fairness flows directly from the nephew’s standing and consequent designation as a party.

29 Credible, relevant and significant material adverse to the nephew? The Guardianship Tribunal apparently accepted that the information in the financial records was “credible, relevant and significant” material. They explicitly stated that they took the material into account. The nephew submitted that he and his mother provided the Guardianship Tribunal with evidence that TD had placed $22,000 in an account, which was to be for the care of one of TD’s sisters. However the Guardianship Tribunal decided to accept the evidence of the step-son’s wife who told the Guardianship Tribunal that no such account existed. However, the accounts submitted to the Guardianship Tribunal only go back to 2004. The account containing $22,000 allegedly existed prior to that date. If the nephew had had access to the financial records and realised that the accounts only went back to 2004, he may have been in a position to question the step-son’s wife about the existence of more relevant records.

30 Similarly, the information contained n the report from the Director of Nursing and her oral evidence, was referred to in the Guardianship Tribunal’s reasons for decision. Therefore, that report must have been considered as “credible, relevant and significant”. On page 10 of the Guardianship Tribunal’s reasons for decision it states that the evidence of the Director of Nursing suggests that TC and TD did not have a close relationship because the Director of Nursing had not met TC in the 6 years that TD has been in the nursing home. That finding was then used as one of the reasons for denying the nephew access to the financial records.

31 Substance of material and opportunity to respond. The third requirement is that at least the substance of the material must be put to the party in circumstances where he or she has a reasonable opportunity to respond. In relation to the financial records, it is not in dispute that the Guardianship Tribunal denied the nephew access to those documents. Consequently, he had no opportunity to respond to the content of that material. However, the Guardianship Tribunal relied on the confidential nature of those documents. We consider that issue further below. In relation to the report from the Director of Nursing, the nephew became aware during the course of the hearing before the Guardianship Tribunal that the Director of Nursing had prepared a submission. He did not see that document until the Guardianship Tribunal provided it to the Appeal Panel. The nephew said that if he had been given the report from the Director of Nursing, or known of its content, he would have requested other witnesses to come and give evidence about the closeness of his relationship with his aunt. The nephew was not given an opportunity to question the Director of Nursing about the closeness of his relationship with his aunt or about her conclusions in relation to the management of his aunt’s financial affairs.

32 The Guardianship Tribunal has breached the rules of procedural fairness by not communicating to the nephew the credible, relevant and significant information in the report from the Director of Nursing and by not giving the nephew a reasonable opportunity to respond to that information.

33 Exceptional circumstances? The final question in relation to the financial records is whether the need for confidentiality displaced the hearing rule in the circumstances of this case. (Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 116 per Kirby J, at 100 per McHugh J; Muin v Refugee Review Tribunal (2002) 76 ALJR 966 at 991 per McHugh J; Kioa v West (1985) 159 CLR 550 per Brennan J at 629; J v Lieschke (1987) 69 ALR 647 Brennan J at 653). Contrary to the Tribunal’s approach of balancing the right to privacy of a person against the right to procedural fairness, the correct approach is that the rules of procedural fairness prevail unless there are exceptional circumstances which override those rules.

34 Despite the fact that the Guardianship Tribunal’s jurisdiction is essentially protective, there is no express power in the Guardianship Act allowing the Tribunal to withhold any part of the evidence from one party in contested proceedings. Courts have inherent jurisdiction to admit evidence and yet withhold it from an affected party: Nicopoulos v Commissioner for Corrective Services 2004 NSWSC 502 at [88]. In that case Smart J noted at [71] that “It is a particularly serious step for a Court to consider material not made available to one of the parties in the proceedings before it.” Nevertheless, given the protective nature of the Guardianship Tribunal’s jurisdiction, there are narrow circumstances where it is permissible to do so. In J v Lieschke (1987) 69 ALR 647 Brennan J noted at 653, that:

If an unqualified application of the principles of natural justice would frustrate the purpose for which the jurisdiction is conferred, the application of those principles would have to be qualified: see Kioa v West (Minister for Immigration and Ethnic Affairs) (1985) 60 ALJR 113, at 141, 148–9; 62 ALR 321 at 370, 383–4. In some custody proceedings, some qualification of the principles of natural justice may be necessary in order to ensure paramountcy to the welfare of the child; for example, it may be necessary to keep a welfare report confidential, as in Re K and as provided for in s 89(3) of the Act. But a desire to promote the welfare of the child does not exclude application of the principles of natural justice except so far as is necessary to avoid frustration of the purpose for which the jurisdiction is conferred: see Re JRL;; Ex parte CJL (1986) 60 ALJR 528; 66 ALR 239.
35 Even so, as with courts, it is a serious matter for the Tribunal to accept secret evidence from one party. In what circumstances is the acceptance of such evidence an error of law? While we were unable to identify any relevant authority on that point, the acceptance of secret evidence should be an exceptional rather than a routine event. Whether the circumstances justify keeping the information secret will be a matter to be determined on a case by case basis. The Tribunal decided to keep the records confidential on the basis that there was not a close relationship between the nephew and his aunt and because the nephew had made unsubstantiated allegations about the manner in which the step-son was managing TD’s financial affairs.

36 Conclusion. In our view, the question of whether the nephew was able to provide evidence to support his concerns about the financial management of his aunt’s affairs is not relevant to the issue of confidentiality. As the High Court (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) recently re-iterated in Applicant Veal of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005]HCA 72 at [16], the principles of procedural fairness “are not concerned with the merits of a particular exercise of power but with the procedure that must be observed in its exercise”. The High Court went on to say that, “Because principles of procedural fairness focus upon procedures rather than outcomes, it is evident that they are principles that govern what a decision maker must do in the course of deciding how the particular power given to the decision-maker is to be exercised.” Consequently, whether or not the nephew has made unsubstantiated allegations or is on a so-called “fishing expedition”, is not relevant to the question of whether he should be afforded procedural fairness. It may have been relevant to the issue of whether he should have been regarded as a person who had a genuine concern for the welfare of TD and was, as a consequence, granted standing to conduct these proceedings.

37 While the closeness of the relationship between the nephew and his aunt may be of relevance to the question of confidentiality, in this case, that finding was itself tainted by a breach of procedural fairness. In our view, the confidential nature of the financial records does not override the nephew’s entitlement to be afforded procedural fairness in this case. There was no suggestion that the nephew was not concerned about TD’s welfare, or that his interests were in conflict with those of TD. By not giving the nephew access to the financial records, the Guardianship Tribunal is essentially saying to the nephew that he should trust them to determine whether there is any indication that TD’s affairs were being mismanaged. A fairer and more transparent approach which accords with the principles of procedural fairness, is to give parties access to documents (or communicate the substance of those documents) so that they can respond to the material and raise any concerns they may have. In doing so, the interests of the subject person in being free from exploitation and abuse, will generally be promoted. For those reasons, we find that the Guardianship Tribunal has made an error of law by not disclosing to the nephew the content of the financial records.

Decision not to carry out a review of the enduring power of attorney.

38 On 16 December 2001, TD appointed her husband as her power of attorney. As we said earlier in these reasons, he died a few months later and the alternate attorney, TD’s step-son, is currently her attorney. TD’s nephew applied to the Guardianship Tribunal for a review of the enduring power of attorney held by TD’s step-son. The Guardianship Tribunal decided not to review the making of the Enduring Power of Attorney. Its reasons for making that decision were as follows:

There was no evidence before the Tribunal that TD lacked capacity at the time she executed the Enduring Power of Attorney (the EPA”).

[The nephew] provided no evidence to establish that the EPA was being operated against [TD’s] financial interests.

39 The nephew submitted that there was evidence before the Guardianship Tribunal that TD lacked capacity at the end of 2001 and that the Guardianship Tribunal overlooked that fact. The second error which he said the Guardianship Tribunal made was breaching procedural fairness by failing to give him access to certain medical reports.

40 The step-son submitted that the Guardianship Tribunal did not make an error of law because there was no direct evidence of TD’s capacity as at December 2001. The step-son also submitted that the Guardianship Tribunal did not deny the nephew procedural fairness by failing to provide him with copies of certain medical reports.

41 Evidence of lack of capacity. According to the nephew, the evidence that TD lacked capacity at the time she executed the Enduring Power of Attorney consisted of a medical report by Dr Coltheart. In that report, Dr Coltheart said:

I have had the opportunity to review a Mini Mental State assessment done by the Hunter Rural Aged Care Assessment Team on 23 May 2000 at which time her score was 18. It was commented at the time that her recall of events over the last four years was very poor and that she demonstrated serious memory and judgement problems. I would be inclined to agree with that assessment.
42 A letter from Dr Peters, TD’s regular doctor, also refers to the Mini Mental State assessment done by the Hunter Rural Aged Care Assessment Team. The nephew was not given access to this letter.

43 Breach of procedural fairness. For the same reasons as we concluded that the nephew had not been afforded procedural fairness in relation to the financial records and the report from the Director of Nursing, we are of the view that the nephew was denied procedural fairness by not being given a copy, or at least being told of the substance, of the medical reports which the Guardianship Tribunal had before it.

Medical consent

44 It appears from the Guardianship Tribunal’s decision that TD is incapable of giving consent to the carrying out of medical treatment. While this issue was not raised with the Appeal Panel, the documents before us indicate that TD is taking anti-depressant medication which generally requires consent to be given by a “person responsible”. (See s 35 and s 3E of the Guardianship Act.). TD does not have an enduring guardian and there is no indication in the Guardianship Tribunal’s decision as to whom the Nursing Home regards as the “person responsible” for giving that consent. Ideally, the Guardianship Tribunal should have raised that issue in the course of the hearing.

Appeal on other grounds

45 A party to a Guardianship Tribunal proceeding has the right to appeal to the Appeal on a question of leave. A party must obtain the leave of the Appeal Panel before appealing “on any other ground”. (Section 118B(1) of the ADT Act.) The nephew purported to appeal on other grounds, but those grounds largely raised questions of law. The nephew did not ask the Appeal Panel to conduct a fresh hearing and reconsider the merits of the Guardianship Tribunal’s decision. Because the legislature has given the Guardianship Tribunal primary responsibility for appointing substitute decision makers, the Appeal Panel should not assume that responsibility unless there is a persuasive reason for doing so. No such reason was advanced in this case.

Orders

1. The decision of the Guardianship Tribunal made on 4 August 2005, to dismiss the application by TC (the nephew) for a guardianship order in relation to TD is set aside.

2. The decision of the Guardianship Tribunal made on 4 August 2005, to dismiss the application by TC (the nephew) for a financial management order in relation to TD is set aside.

3. The decision of the Guardianship Tribunal made on 4 August 2005, to dismiss the application for review of the enduring power of attorney made by TD on 16 December 2001, is set aside.

4. Each of the applications by TC (the nephew) is remitted to the Guardianship Tribunal to be heard and decided again, with the hearing of further evidence, if relevant.