TGN v MCN and the Public Advocate

[2023] SASCA 62

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

TGN v MCN & ANOR

[2023] SASCA 62

Judgment of the Court of Appeal  

(The Honourable Justice Doyle, the Honourable Justice Bleby and the Honourable Auxiliary Justice Dalton)

9 June 2023

HEALTH LAW - GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY - GUARDIANSHIP AND SIMILAR APPOINTMENTS - GUARDIANSHIP BOARDS AND TRIBUNALS GENERALLY

The applicant’s son, N, suffers from severe autism, intellectual disability and bipolar disorder.  On 6 June 2018 the Public Advocate was appointed full-time guardian for N, who was then 18 years old.  The appointment was against a background of dispute between N’s parents as to his care.  After the guardianship order was made, the Public Advocate allowed N to live at home with his mother as he had before the order.  She cared for him with the help of paid service providers.  In March 2021 the Public Advocate determined that N was to live with, and be cared for, by disability service providers, rather than his mother. 

On 31 March 2021, the applicant lodged an application to the South Australian Civil and Administrative Tribunal (SACAT) to vary or revoke the guardianship order.  That application was considered at a hearing on 13 May 2021 at which N’s guardianship was to be reviewed in any event.  The application for revocation or variation was dismissed, and the Public Advocate’s guardianship was confirmed. 

The applicant lodged another such application on 30 December 2021. The application was dismissed by a Member of SACAT on the basis that the applicant failed to demonstrate that the reason for her application was a change in her son’s circumstances for the purposes of s 33(1a)(i) of the Guardianship and Administration Act 1993 (SA).

The applicant sought an internal review which was dismissed by the President of SACAT.  The applicant now appeals the decision of the President to dismiss the application for internal review.

HELD (Dalton AJA, with whom Doyle and Bleby JJA agreed) granting leave to appeal, allowing the appeal and remitting the matter to SACAT for determination:

1. The term “circumstances” in s 33(1a)(a) of the Guardianship and Administration Act 1993 (SA) can include the effect on the protected person of decisions made by the guardian, including where that guardian is the statutory guardian.

2. There is no rule that when an application for revocation or variation is brought, SACAT may not assess whether or not the Public Advocate has proved to be a suitable guardian or has acted properly in the interests of a protected person.

3. The effect of s 33(1a)(a)(i) of the Guardianship and Administration Act 1993 (SA) is that before an application can proceed to hearing the applicant must satisfy the Tribunal that the reason for the application is a change in the circumstances of the protected person. There is no requirement to in fact demonstrate a change in the circumstances.

South Australian Civil and Administrative Tribunal Act 2013 (SA) ss 70 and 71; Guardianship and Administration Act 1993 (SA) ss 30 and 33, referred to.
Re MYW [2019] SACAT 19, considered.

TGN v MCN & ANOR
[2023] SASCA 62

Court of Appeal – Civil:  Doyle and Bleby JJA and Dalton AJA

1. DOYLE JA:     I agree with the reasons and proposed orders of Dalton AJA.

2. BLEBY JA:     I would allow the appeal for the reasons given by Dalton AJA.  I would join in the orders proposed by her Honour.

3. DALTON AJA:  This is an application for leave to appeal from a decision of the President of the South Australian Civil and Administrative Tribunal (SACAT).[1]  That decision of Hughes P delivered 5 December 2022 was one which refused leave to the applicant to bring an application for internal review of a decision made by a member of SACAT, Member Gilfillan (18 August 2022).[2] 

   [1] The applicant requires leave, s 71(1)(a)(i) and (2) of the South Australian Civil and Administrative Tribunal Act2013 (SA) (SACAT Act).

   [2] The applicant required leave, s 70(1a) of the SACAT Act.

4. I would grant leave to appeal because error in relation to an important, and generally applicable, principle of law is demonstrated in the decision below.  I would allow the appeal because by reason of that error the applicant’s case was dismissed below when it ought not to have been. 

   Factual Background

5. The applicant’s son, N, suffers from severe autism, intellectual disability and bipolar disorder.  On 6 June 2018 the Public Advocate was appointed full-time guardian for N, who was then 18 years old.  The appointment was against a background of dispute between N’s parents as to his care.  After the guardianship order was made, the Public Advocate allowed N to live at home with his mother as he had before the order.  She cared for him with the help of paid service providers.  From January 2021 the Public Advocate began to transition more of N’s care to disability service providers.  In March 2021 the Public Advocate determined that N was to live with, and be cared for, by disability service providers, rather than his mother.  There is nothing in the voluminous material before this Court which explains why that decision was made.  The decision marked the beginning of conflict between the Public Advocate and the applicant. 

6. On 31 March 2021, the applicant lodged an application to vary or revoke the guardianship order.  That application was considered at a hearing on 13 May 2021 at which N’s guardianship was to be reviewed in any event.  The application for revocation or variation was dismissed, and the Public Advocate’s guardianship was confirmed. 

7. Having been unsuccessful on her March 2021 application for variation or revocation of the guardianship order, the applicant lodged another such application on 30 December 2021.[3]  Member Gilfillan described the material in support of this application as follows:

   10.… An affidavit sworn by [the applicant] on 22 December 2021 was lodged in support of the application.  That document contained extensive historic information regarding past family dynamics, changing parenting arrangements for [her son] over his childhood and her disagreement with decisions made by the guardian since the appointment of the Public Advocate.  She also revisited the reasons why she had sought the variation of the guardianship order in March 2021 (heard on 13 May 2021). 

   11.The affidavit detailed dissatisfaction with the initial decision by the Tribunal to appoint the Public Advocate and the Public Trustee; criticism of the various delegated guardians and decisions made in their role as guardian; objection to the change of service provider to About U Services; concerns over the NDIS Plan; alleged failure by Public Trustee to report on NDIS expenditure; grievances regarding reduced and restricted access; perceived intrusions into the privacy of [the applicant]; alleged breaches of NDIS Rules, policies and guidelines by About U Services; allegations of conflicts of interest; allegations of poor care provision. 

   12.[The applicant] outlined her plan if she was appointed as the guardian.  Recommendations for an alternate administrator were also detailed.  The primary purpose of the alternate administrator is to oversee generally and to communicate/report to her on the NDIS funding.

   [3]     The application also asked for revocation of the appointment of the Public Trustee as Administrator of N’s funds.  That appointment was made in 2018.  The applicant was unsuccessful on this application before both Member Gilfillan and President Hughes.  While that application involves very similar, if not identical issues as the application for revocation of guardianship, it was not pursued in this Court. 

8. Member Gilfillan made directions identifying that the applicant needed to provide information about whether she satisfied the criteria in s 33(1a)(a) of the Guardianship and Administration Act 1993 (SA) (GA Act). She directed that issue be heard on the papers and in advance of the other questions raised by the applicant. The applicant filed what Member Gilfillan called “a voluminous document titled Second Affidavit” in response. The applicant opposed a hearing on the papers, she also opposed the question of her right to bring an application being heard separately in advance. Member Gilfillan allowed an oral hearing as to whether or not the requirements of s 33(1a)(a) of the GA Act had been satisfied, but she did determine this issue as a separate question in advance of the other issues raised by the applicant.

   Provisions of the GA Act

9. The applicant does not have an unfettered right to make application to vary or revoke the guardianship order. Her rights are qualified by s 33(1a)(a) of the GA Act. The relevant legislative provisions are as follows:

   30—Variation or revocation of guardianship order

   The Tribunal may, on an application made under this Division, by order—

   (a)     vary a guardianship order; or

   (b)     revoke a guardianship order.

   …

   33—Applications under this Division

   (1)An application under this Division … may be made by—

   (a)     the person to whom the proceedings relate; or

   (b)     the Public Advocate, on his or her own initiative, or at the request and on behalf of the person to whom the proceedings relate; or

   (c)     a guardian of, or substitute decision maker for, the person; or

   (d)     an administrator of the person's estate; or

   (e)     subject to subsection (1a)—

   (i)    a person responsible for the person; or

   (ii)any other person who satisfies the Tribunal that they have a proper interest in the welfare of the person.

   (1a)   Subsection (1)(e) applies subject to the following qualifications:

   (a) an application for an order under section 30 may not be made by a person referred to in subsection (1)(e) unless the person satisfies the Tribunal that the reason for the application is a change in the circumstances of—

   (i)    the person to whom the guardianship order applies; or

   (ii)     the appointed guardian (not being the Public Advocate);

   (b)     …

   (2)Applications under this Division must be made in the manner and form determined by the Tribunal.

   The Reasoning Below

   The decision of Member Gilfillan

10. The applicant, as a parent, fell within the description at s 33(1)(e)(i) of the GA Act, see the definition of “person responsible” at s 3 of the GA Act. Therefore she could not make an application unless she satisfied the Tribunal “that the reason for the application is a change in the circumstances of … the person to whom the guardianship order applies”.[4]  Member Gilfillan found that the applicant failed to demonstrate that the reason for her application was a change in her son’s circumstances.  It followed that she had no right to make the application and it was dismissed.  Member Gilfillan delivered a Statement of Reasons dated 18 August 2022. 

    [4] The applicant expressly disclaimed reliance on s 33(1a)(a)(ii).

11. In addressing the interpretation of s 33(1a), Member Gilfillan noted that the sub-section was introduced by amendment.[5] The Member noted the Attorney‑General’s second reading speech introducing this amending Act to the effect that the purpose of s 33(1a) was, “… to enable SACAT to filter out inappropriate applications for variation or revocation (for example, repeated applications from disgruntled relatives or friends who disagree with an order/appointment, applying for variation or revocation shortly after an order has been made)”.[6]

    [5]     The Statutes Amendment (SACAT No 2) Act 2017, No 51 of 2017, which came into effect on 14 December 2017.

    [6]     Hansard, House of Assembly, 9 August 2017, p 10839.

12. The Member then said, “The only change in the circumstances that is relevant to this hearing, relates to [N]”.[7]  That may be accepted.  She identified that, “The alleged change of circumstances relating to [N] appears to be the assertion that his physical and mental health has declined as the result of decisions made by the guardian”.[8]  That was an accurate statement of the applicant’s position before Member Gilfillan and before this Court. 

    [7]     Statement of Reasons of Member Gilfillan (2018/SC001184, 18 August 2022), [39].

    [8]     Statement of Reasons of Member Gilfillan (2018/SC001184, 18 August 2022), [43].

13. Member Gilfillan thereafter gave three inter-related reasons why she was not satisfied that the applicant had brought herself within the words of s 33(1a)(a) of the GA Act. First, she took the view that it was not open to the applicant to base a change of circumstances on an assertion that the Public Advocate had acted in a way which was unsatisfactory:

    37.The detailed concerns submitted by [the applicant] regarding the performance of the delegated guardian from the Public Advocate or disagreement with the decisions made by the guardian regarding accommodation, health, services, access or NDIS do not establish a basis for the variation application to be heard.

14. A footnote at the end of this paragraph contains the reason for this conclusion:

    See MYW [2019] SACAT 19 at para 72, 73: “The Public Advocate and her staff are implicitly envisaged to be “suitable” … If a delegate fails to discharge that duty, there are avenues by which an alleged failure might be investigated …”.

15. As part of this reasoning, Member Gilfillan said that the complaints which the applicant has in relation to the statutory guardian could be pursued through the Office of Public Advocate, Ombudsman SA or the NDIS.  This might be true, although as the Member herself notes, there is a difficulty with complaining to the Public Advocate about its own behaviour.[9]  Further, I wonder how efficacious complaints to the other bodies might be.  In any event, the existence of other complaint mechanisms does not compel the construction adopted by Member Gilfillan. 

    [9]     Statement of Reasons of Member Gilfillan (2018/SC001184, 18 August 2022), [49].

16. The determination of Member Gilfillan is at [53] of her reasons:

    53.I have decided that [the applicant] has not demonstrated a change of circumstances of [N]. He has not and will not regain capacity. The contentions primarily reflect long standing grievances arising from the appointment of the Public Advocate and the limitations to the role [the applicant] has in her son’s primary decision making. Her application to vary or revoke the guardianship order and the administration order will not be considered by the Tribunal as she hasn’t satisfied the criteria in s 33 and s 37.

17. In my view, this passage gives two further reasons for Member Gilfillan deciding that the applicant has not demonstrated a change of circumstances within the meaning of s 33(1a). First, because she does not regard the effect of the Public Advocate’s decisions on N’s health as capable of amounting to “circumstances” within the meaning of s 33(1a)(a), the only circumstance available to consider is whether or not N still lacks capacity. Secondly, the factual matters relied upon by the applicant are not new after the decision of May 2021, so that there is no relevant change in circumstances demonstrated.

    The decision of President Hughes

18. President Hughes gave reasons for her decision refusing leave for an internal review on 5 December 2022. She first noted that s 70(1a) provided that an application for internal review was only available with leave, but that the section did not prescribe any standard of satisfaction to be reached by her in deciding whether or not to grant leave. She proceeded on the basis that leave should only be granted where the applicant showed a reasonably arguable point. This part of her judgment was not challenged.

19. President Hughes rejected an argument that in interpreting the condition “unless the person satisfies the Tribunal that the reason for the application is a change of circumstances”, it was only necessary for an applicant to show a belief in a change of circumstances, rather than a change of circumstances in fact.  There is no appeal from this part of Hughes P’s judgment.

20. As a consequence of these two decisions, Hughes P then addressed the question, “whether the applicant has a reasonably arguable case that [N]’s circumstances, within the meaning of s 33 have changed”.[10]  The President noted that the applicant put affidavits before Member Gilfillan to the effect that N’s mental and physical health had declined due to the way he was treated by the external service providers engaged by the statutory guardian.  The President noted that this evidence was disputed by the statutory guardian.  She then reasoned:

    41.The Tribunal considered the applicant’s submission that [N]’s circumstances had changed at paragraphs [43] and [53]:

    “The alleged change of circumstance relating to [N] appears to be the assertion that his physical and mental health has declined as a result of the decisions made by the guardian.

    …

    I have decided that [the applicant] has not demonstrated a change of circumstances of [N].  He has not and will not regain capacity.”

    42.I have considered whether the manner in which this is expressed, and in particular whether the fact that the finding is immediately followed by the words “He has not and will not regain capacity” indicates that the Tribunal Member restricted her consideration only to the issue of capacity.  If so, that is arguably too narrow an interpretation of a protected person’s “circumstances”.  However, I am not satisfied that this is what was intended.  The better view, reading the Statement of Reasons as a whole, is that the Tribunal Member did not accept that [N]’s medical or psychological condition had changed in the way asserted by [the applicant].  Rather, she accepted the evidence of [the respondent]. 

    [10]   Order of the Tribunal, President Hughes (2022/SIR000167, 5 December 2022), [38].

21. With respect, I cannot construe the reasons of Member Gilfillan as Hughes P did.  Member Gilfillan had the applicant’s detailed and extensive evidence as to the propriety of the statutory guardian’s decisions and care, and their effects on N.  By telephone she heard a Ms Freytag, to whom the Public Advocate had delegated N’s care, say that while the condition of N fluctuated, “I disagree with the view that there’s an overall downward trajectory, and the remainder of his care team also disagrees with that”.[11] It appears that, because she had decided to hear the s 33(1a)(a) question first, Member Gilfillan did not hear any detailed exploration of the affidavit material. The result was that she had no proper basis to prefer one part of the evidence to the other, and indeed there is no part of her reasons in which she expressly does so.

    [11]   SACAT Transcript of Hearing on 4 August 2022 before Member Gilfillan (2018/SC001184), T19.

22. President Hughes went on to address the interpretation of the phrase “a change in the circumstances of … the person to whom the guardianship order applies” in more detail.  She rejected the idea that this phrase was “limited to the protected person’s physical or mental health”.  However, the President was of the view that, “in this particular case, the circumstances that were available for consideration as having changed were limited to those relating to N’s health or other circumstances relating to him but did not extend to the circumstances of the suitability of the OPA’s decision making”.[12]  She said, “… whilst his “circumstances” go beyond his health, the actions of a statutory guardian do not amount to “circumstances” that can enliven a right to seek to revoke the appointment of the statutory guardian”.[13]  For this reason, Hughes P found that the applicant had not demonstrated an arguable case and refused leave for the internal review. 

    [12]   Order of the Tribunal, President Hughes (2022/SIR000167, 5 December 2022), [46].

    [13]   Order of the Tribunal, President Hughes (2022/SIR000167, 5 December 2022), [50].

1. Respectfully, I agree that the bare actions of a statutory guardian may not amount to “circumstances” so described. However, I consider that the term “circumstances” in s 33(1a)(a) can include the effect on the protected person of decisions made by the guardian, including where that guardian is the statutory guardian.

2. In coming to her conclusions, Hughes P relied upon her own decision in Re MYW.[14] In that case, the President had occasion to refer to s 29(4) of the GA Act. Section 29 gives the Tribunal power to appoint a guardian who is a natural person. Sub-section (4) goes on to say, “The Public Advocate may be appointed as the guardian, … of the person, but only if the Tribunal considers that no other order under this section would be appropriate”.[15] Having regard to that provision, Hughes P described the Public Advocate as a guardian of “last resort”.  I am not entirely persuaded that the use of such labels is more desirable than simply applying the words of the statute, but in any event, Hughes P’s decision in the present case reasoned that because the Public Advocate was a guardian of last resort, it was “not a guardian who may be replaced for failure to carry out their functions or making poor decisions”.[16]  Further, that on an application for revocation or variation, “The statutory scheme does not envisage that the Tribunal will engage in an assessment of whether the OPA is a suitable guardian or whether individual decisions made by the OPA as guardian were the right decisions”.[17] 

   [14] [2019] SACAT 19.

   [15]   ReMYW [2019] SACAT 19, [70] (Hughes P).

   [16]   Order of the Tribunal, President Hughes (2022/SIR000167, 5 December 2022), [45].

   [17]   Order of the Tribunal, President Hughes (2022/SIR000167, 5 December 2022), [45].

3. In my view these last two propositions do not follow from the provision at s 29(4) of the GA Act, and are not correct. It may be accepted that, in the event that no other guardian is available or suitable, then the Public Advocate will be suitable for appointment under s 29(4) of the GA Act. In that sense, the Public Advocate will always be an available, or eligible, guardian. However, the Tribunal’s duty under s 29(1) of the GA Act is to appoint as guardian the person who the Tribunal “considers, in all the circumstances of the case, to be the most suitable for the purpose”. There will no doubt be cases in which, although there are natural persons willing to be a guardian, they have attributes (temporary or permanent) which make them unsuitable so that the Tribunal comes to a view, pursuant to s 29(4), that the Public Advocate must be appointed the guardian. It is not hard to imagine a case in which, after such an order is made, the circumstances of the protected person change so that it is correct to revoke the appointment of the Public Advocate as guardian and appoint someone else. The change in circumstances may have nothing to do with the Public Advocate – the protected person’s parents or other relations may demonstrate improved circumstances so that the Public Advocate is no longer the only appropriate guardian. The protected person’s health might deteriorate under the care of the Public Advocate in a way which was not foreseen at the original s 29 application. This might occur due to no fault on the part of the Public Advocate: the protected person may simply decline as a result of being removed from familiar surroundings and familiar persons. On reconsideration, on a revocation application, there may be an appropriate order for guardianship which does not involve the Public Advocate as guardian, or an appropriately nuanced order that the Public Advocate play a role as a limited guardian –,[18] or a guardian subject to conditions (such as the place of care).[19]  The applicant here could not be in a worse position because she says that her son’s health has declined because of poor decision‑making, and poor care, on the part of the Public Advocate and its disability service providers.

   [18]   Guardianship and Administration Act 1993 (SA) s 29(2).

   [19]   Guardianship and Administration Act 1993 (SA) s 29(6).

4. In my view then the decision of Hughes P that the basis for the applicant’s revocation application was “misconceived” was erroneous.[20] There is no rule to be derived from the GA Act, or from the case law, that when an application for revocation or variation is brought, SACAT may not assess whether or not the Public Advocate has proved to be a suitable guardian or has acted properly in the interests of a protected person. If it can be seen that poor decision-making or care has had a detrimental effect on the protected person, that will amount to circumstances within the meaning of s 33(1a)(a) of the GA Act. Here, it was open to the applicant to rely upon a deterioration in N’s physical and mental health due to poor decision‑making, and poor care, by the Public Advocate as circumstances of the protected person within the meaning of s 33(1a)(a).

   [20]   Order of the Tribunal, President Hughes (2022/SIR000167, 5 December 2022), [47].

   Relief sought by the applicant

5. The applicant asked that this Court set aside the decision of Hughes P to refuse internal review, and substitute a decision that the application for internal review was granted, and that the matter was remitted to Member Gilfillan, or another member of the Tribunal, to properly deal with the applicant’s December 2021 application to vary or revoke the guardianship of the Public Advocate. 

6. The Public Advocate opposed those orders.  Counsel for the Public Advocate did not seek to defend the reasoning of Hughes P based on an extrapolation from Re MYW, but submitted that it was still correct to refuse an internal review because: (a) the material did not demonstrate that the basis for the application was the circumstances of N, and (b) did not demonstrate a change in circumstances.  I am against the Public Advocate on both these points, which I discuss in turn.

   “Circumstances”

7. Firstly as to what might constitute circumstances of the protected person within the meaning of s 33(1a)(a)(i), I think the interpretative exercise ought to start with an acknowledgment that the word “circumstances” is of wide import.

8. Counsel for the Public Advocate pointed out that the word is used in three different ways in sections of the GA Act having to do with guardianship. In s 29(1), the Tribunal is given power to place a person under the guardianship of the person who the Tribunal considers “in all the circumstances of the case” to be the most suitable. I accept the Public Advocate’s submission that “all the circumstances of the case” must be a wider set of circumstances than “the circumstances of … the person to whom the guardianship order applies” at s 33(1a)(a)(i). I also accept the submission that further focus is given to this phrase by contrast with the phrase “the circumstances of … the appointed guardian …” used at s 33(1a)(a)(ii). Thus, while “circumstances” is a word of wide import, it has a particular textual focus in s 33(1a)(a)(i): it is the circumstances of the protected person to which attention is directed.

9. I think that the statutory context brings a limitation to the word “circumstances”. The long title of the GA Act described it as one “to provide for the guardianship of persons unable to look after their own health, safety or welfare or to manage their own affairs …”. That a protected person’s care, wishes, freedom and personal autonomy are central to a consideration of the exercise of power pursuant to the GA Act is made clear by s 5. In interpreting what is encompassed by the circumstances of a protected person, I would use these statutory indications as guides but not limits.

10. The statutory scheme is to allow the Tribunal to appoint a guardian – s 29, and then for a review of the circumstances of the protected person to occur “at intervals of not more than three years” – s 57(1). Against that, s 30 of the GA Act provides that the Tribunal has power to vary or revoke a guardianship appointment. Such an application may be made as of right by the protected person, the Public Advocate, a guardian, substitute decision maker, or an administrator of a person’s estate – s 33(1)(a)-(d). A “person responsible” for the protected person, or any other person with “a proper interest in the welfare” of the protected person may also apply – s 33(1)(e) – but only where they satisfy the Tribunal that the reason for the application is a change in circumstances of the protected person – s 33(1a)(a)(i).

11. I accept the Public Advocate’s submission that an application for variation or revocation pursuant to s 33 of the GA Act is not an appeal, and not a review. It is a new, independent application seeking to disturb existing guardianship orders and for someone in the position of the applicant, such an application cannot be made as of right.

12. Against this statutory context, I interpret “the circumstances of … the person to whom the guardianship order applies” as including any circumstance related to that person’s health, safety and welfare, and as extending to any circumstance of the protected person of a type which would have been relevant in undertaking a consideration of whether to appoint a guardian, including not only whether there was any appropriate appointment but the Public Advocate, but also whether it might have been appropriate to order a limited guardianship, or to make any guardianship subject to conditions.  Human nature and human affairs being what they are, I think it would be unwise to seek to articulate any further limit within which to confine such circumstances. 

    Change in circumstances

13. The Public Advocate argued that s 33(1a)(a)(i) required an applicant to demonstrate a change in circumstances since the matter of guardianship was last before the Tribunal, whether on the occasion of its initially making a guardianship order; reviewing it, or considering whether or not it should be revoked or varied. It was submitted that this applicant did not demonstrate a change in circumstances between the May 2021 review at which the guardianship of the Public Advocate was confirmed, and the time of her August 2022 application before Member Gilfillan.

14. It is true that the affidavit material on behalf of the applicant does not always make clear distinctions between conduct of the Public Advocate and its effects on N which occurred before May 2021, and after May 2021.  The applicant relies upon many decisions of the Public Advocate and dozens of her own observations as to the effect of these decisions on N.  Nonetheless, some of the decisions and some of the effects described are put as occurring after May 2021.  Further, it is the nature of the applicant’s case that the Public Advocate’s decisions and poor care has cumulated in effect.  For example, the applicant relies upon the Public Advocate deciding to move N from house to house.  There have been four moves, two before, and two after May 2021; another move is foreshadowed.  N is said to be unsettled by so many moves.  To take a further example, the applicant says that carers engaged by the Public Advocate are inexperienced and incompetent to deal with the sometimes very difficult behaviours of N.  This results in N being treated with physical restraint and assertively when that is not necessary.  The applicant’s case is that as a result, on an accumulated basis over time, N is suffering physically and in a state of fear and anxiety for much of the time. 

15. I think it is open to the applicant to demonstrate a change in circumstances since the May 2021 review which relies upon factual matters which occurred before May 2021 if it can be seen that her application is based on the cumulative effect of such matters having manifested since May 2021. Cases such as this will raise questions of degree as to whether or not the applicant is relying upon a change newly manifest since a previous review, or is simply relying on matters which they have raised, or had the opportunity to raise, before. Where a case falls within the latter description, a change in circumstances within the meaning of s 33(1a)(a)(i) would not be demonstrated. Here, there was a period of nearly 18 months between the May 2021 review and the August 2022 hearing before Member Gilfillan. There were substantial decisions and acts of the Public Advocate made during that 18 months which are alleged to have caused or aggravated detrimental physical and mental health outcomes for N. It seems to me this application is one in which the applicant relied upon a change in circumstances since May 2021, notwithstanding that some factual matters which occurred before May 2021 were relevant to that demonstration.

    Hearing the s 33(1a)(a)(i) issue separately

16. As noted above, the applicant objected to Member Gilfillan hearing this issue separately in advance of the other parts of her application, and that objection was reiterated as a reason why Hughes P ought to grant internal review.  The complaint was not raised as a ground of appeal in this Court.  Nevertheless, as the hearing of the appeal took place, argument was directed to it, and the associated question of what level of satisfaction needed to be reached by a Member who was considering whether or not an applicant had satisfied the Tribunal that there was a change in circumstances of a protected person.  In these circumstances, I will record my view as to this matter. 

17. The submission on behalf of the Public Advocate was that where the applicant alleged a change in the circumstances of the protected person which was denied by the guardian, the Tribunal Member was obliged to embark on a hearing full enough to enable a final determination of fact as to whether or not there had been the change of circumstances alleged.  In a case such as this one, that would have required a long hearing at which many of the contentious facts sought to be agitated on the application to revoke or vary guardianship were determined. 

18. In my view, s 33(1a)(a) does not demand such a lengthy hearing. First, the words of the section show that it is concerned with the making of the application.  The application may not be made unless the Tribunal is satisfied. 

19. Secondly, the section does not provide that the application may not be made unless the applicant satisfies the Tribunal that there has been a change of circumstances.  It only provides that the application may not be made unless the person satisfies the Tribunal “that the reason for the application” is a change of circumstances.  When this application is heard by the Tribunal it may or may not be successful in demonstrating a change in N’s circumstances – that cannot be known until the disputed questions of fact are resolved.  What can be ascertained in advance of such a resolution is “that the reason for the application” is a change in N’s circumstances.  If the section is read as meaning that before an application could proceed to hearing the applicant had to satisfy the Tribunal that there had, as a matter of fact, been a change in the circumstances of the protected person, the words “that the reason for the application” are otiose. 

20. In my view, the Tribunal must simply satisfy itself that, as a matter of substance, the reason for the applicant making the application is that there has been a change in the circumstances of the protected person; whether that is proved at the end of the day is a different matter. In those circumstances, I think it was quite appropriate for Member Gilfillan to decide the question of her satisfaction as to s 33(1a)(a) matters on a separate preliminary hearing. Further, this Court is able to make a decision on that matter without resolving any of the contentious factual issues evident on the material.

21. In my view, having regard to the applicant’s affidavit material, the reason for her making the December 2021 application was a change in circumstances of N.  Member Gilfillan ought to have heard the application.

22. I would propose orders that:

    1.Leave to appeal to this Court is granted.

    2.The appeal is allowed.

    3.The decision of President Hughes made 5 December 2022 is varied so that leave to review the decision of Member Gilfillan of 8 August 2022 is granted.

    4.The decision of Member Gilfillan of 8 August 2022 is set aside.

    5.It is determined that the applicant is entitled to make her application filed on 30 December 2021, which application is remitted to Member Gilfillan, or another member of the Tribunal, for hearing.

    Nature of the hearing before the Tribunal

23. I would make a final comment about the nature of the hearing which must now take place in the Tribunal.  In her reasons, Member Gilfillan remarked that SACAT “does not have the authority or resources to investigate the type of grievances raised by [the applicant].  That is the role of external agencies”.[21] I disagree with the import, if not the strict terms, of that statement. If an applicant brings an application under s 33(1) on the basis that the change in circumstances of the protected person has been brought about by the behaviour of the guardian (including the Public Advocate as guardian), the Tribunal is bound to consider the material relied upon in support of that case. In considering the application, the Tribunal is not conducting an investigation; but it is bound to carry out a judicial consideration of material put before it.

    [21]   Statement of Reasons of Member Gilfillan (2018/SC001184, 18 August 2022), [46].

24. What is necessary as part of such a judicial consideration will depend upon the matters raised. Here, there were serious and detailed allegations made about the effect on N’s physical and mental health while in care provided by the service providers engaged by the Public Advocate as guardian. They do not appear on their face to be frivolous or vexatious. Any hearing needs to be adequate to allow the Public Advocate to make a detailed response (cf. the short hearsay response described at [21] above), and for the evidence of both sides to be tested, most appropriately by cross-examination.