TP v TR

[2006] NSWADTAP 7

Appeal Panel - External

CITATION:	TP v TR and ors [2006] NSWADTAP 7 This decision has been amended. Please see the end of the decision for a list of the amendments.
PARTIES:	APPELLANT TP FIRST RESPONDENT TR SECOND RESPONDENT TS THIRD RESPONDENT TQ FOURTH RESPONDENT & DECISION MAKER Guardianship Tribunal
FILE NUMBER:	058017
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	02/14/2006
DATE OF DECISION:	02/17/2006
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	Non-disclosure order
MATTER FOR DECISION:	Preliminary matter
FILE NUMBER UNDER APPEAL:	C/24161
DATE OF DECISION UNDER APPEAL:	09/22/2005
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Guardianship Act 1987 Powers of Attorney Act 2003
CASES CITED:	Kioa v West (1985) 159 CLR 550 QR v Commissioner of Police, New South Wales Police (GD) [2005] NSWADTAP 59
REPRESENTATION:	APPELLANT In person FIRST & SECOND RESPONDENT A Kennedy, solicitor
ORDERS:	The disclosure of Documents D, E, F and G to TP is prohibited

Introduction

1 This decision concerns an application to the Appeal Panel for an order to prohibit the disclosure of certain documents to a woman who I will refer to in these reasons as TP. TP applied to the Guardianship Tribunal for a review of a Power of Attorney in relation to her uncle. Her uncle is a 79 year old man with dementia who lives in a retirement village. TP was concerned about the validity of a Power of Attorney signed by her uncle in February 1997. She was also concerned about actions taken by the donees of the Power of Attorney, two female friends of TP’s uncle. I will refer to these two women as “the friends” and to TP’s uncle as “the uncle”. The Guardianship Tribunal decided, pursuant to s 36(2) of the Powers of Attorney Act 2003, not to make any order in relation to the Power of Attorney executed by the uncle. Consequently TP’s application for a review of the Power of Attorney was dismissed. TP appealed to the Administrative Decisions Tribunal against that decision. That appeal is an “external appeal” and is heard by the Appeal Panel of the Tribunal.

2 The friends were parties to the Guardianship Tribunal proceedings and are therefore parties to the proceedings before the Appeal Panel. They applied for an order under s 75(2)(d) of the Administrative Decisions Tribunal Act 1997 (ADT Act) prohibiting and/or restricting the disclosure of certain documents to TP. Those documents had been before the Guardianship Tribunal when it made its decision but the Guardianship Tribunal had apparently not disclosed the documents to TP. In compliance with the Appeal Panel’s directions, the Guardianship Tribunal produced to the Appeal Panel copies of all the documents which the Guardianship Tribunal relied on in making its decision. The friends objected to seven of these documents being disclosed to TP for the purposes of the appeal proceedings. With one qualification, which I deal with below, TP opposed the friends’ application.

Documents in issue

3 The documents in issue fall into three categories. Documents A, B and C are documents which relate to an application before the Guardianship Tribunal in 1996 concerning the uncle’s late de facto spouse. I presume that the Guardianship Tribunal’s staff identified these documents and provided them to the Members hearing TP’s application because they related to previous proceedings to which the uncle was a party. Document D is a document recording the withdrawal of an application by one of the friends, for consent to special medical treatment in relation to the uncle. Documents E, F and G are letters and other documents directly relating to the financial affairs of the uncle. The documents are as follows:

a) Report to the Guardianship Board concerning [the uncle’s de facto partner] prepared by Susan Wright, Investigation and Liaison Officer on 1 August 1996. ("Document A")

b) Order and reasons for decision for the Guardianship Boards' hearing concerning [the uncle’s de facto partner] conducted 5 August 1996. ("Document B")

c) File note concerning [the uncle’s de facto partner] prepared by Esther Cho, Legal Officer, dated 29 August 2005. ("Document C")

d) Request for Withdrawal Report prepared by Louise Smith, Investigation and Liaison Officer, dated 2 October 2002. ("Document D")

e) Letter from [one of the friends] to the Guardianship Tribunal dated 30 August 2004 from sub-heading "Assets" to sub-heading "Expenditure" (pages 3-4). ("Document E")

f) Letter from Paul McCarthy, Manager, Colonial Financial Planning to one of the friends dated 29 July 1999 (as annexed to Document "E" above). ("Document F")

g) Letter from Jamie Moss, Client Advisory Services Manager -Questor Financial Services to [the uncle] dated 23 April 2004 (as annexed to Document "E" above) together with the Personal Investment Plan document which was an attachment thereto and is dated 23 April 2004. ("Document G")

4 The Guardianship Tribunal specifically noted in its reasons for decision dated 22 September 2005, that it had considered these and other documents prior to making its decision. It is not clear from the reasons for decision which, if any, documents the parties had access to prior to or during the course of the hearing. In her Notice of Appeal to the Appeal Panel, TP did not mention that the Guardianship Tribunal had refused to provide her with access to any documents. However, for the purpose of the present application, I have assumed that the Guardianship Tribunal did not provide TP with access to any of the disputed documents.

Legal principles

5 The general rule embodied in s 75(1) of the ADT Act is that hearings before the Tribunal are to be open to the public. There are various exceptions to that rule. The exception in 75(2)(d) states that:

(2) However, if the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders:

...

(d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.

6 Consequently, the question the Appeal Panel must ask in determining whether or not to make a non-disclosure order, is whether it is “desirable” to make the order either because of the confidential nature of the evidence or for any other reason. When considering the desirability of prohibiting disclosure of documents, the general rule is that all parties have access to documents lodged with the Tribunal and that the Tribunal must afford all parties procedural fairness: s 73(2) of the ADT Act. The Tribunal is also obliged to “take such measures as a reasonably practicable to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings”: s 73(4)(c) of the ADT Act. The fundamental principles of open justice and procedural fairness mean that s 75(2) should be construed narrowly. That view has been expressed recently by the Appeal Panel in QR v Commissioner of Police, New South Wales Police (GD) [2005] NSWADTAP 59 (14 November 2005) at [20]:

Unsurprisingly, statutory powers which permit a Tribunal to take the course adopted by the Tribunal, such as s 75(2) of the Tribunal Act, are strictly and narrowly construed, and operate only if and when there is a public interest supporting their use which outweighs the public interest in the implementation of the fundamental principles of open justice and procedural fairness: see, eg, Raybos Australia Pty Limited v Jones (1985) 2 NSWLR 47 at 55; ABC v Parish (1980) 29 ALR 228 at 233-234 and 236; Mirror Newspapers Limited v Waller (1985) 1 NSW LR 1 at 20; Appellant S214 of 2004 v The Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 66 (26 March 2004), citing Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247. Further, confidentiality must be restricted to that part of the hearing or that part of the evidence for which it is necessary in the interests of justice.

7 In relation to Documents F and G, TP said that she did not object to a non-disclosure order being made provided that those documents deal with matters of a confidential nature relating to her uncle’s finances. I have looked at those documents and I am satisfied that they relate to the uncle’s personal financial affairs and contain information which people would normally regard as confidential. In those circumstances, TP consents to the order sought and I make an order under s 75(2) prohibiting the disclosure of Documents F and G to TP. TP did not say in her written submissions whether she consented to or opposed a non-disclosure order being made in relation to Document E. Document E is part of a letter written by one of the friends to the Guardianship Tribunal on 30 August 2004. The parts of the letter over which the friends have applied for a non-disclosure order contain a summary of the uncle’s financial situation. The failure of TP to mention Document E and the fact that it comes within the same category of documents as Documents F and G, lead me to conclude that TP would not object to a non-disclosure order being made in relation to Document E. Even if she does object, and has not said so, I am satisfied that it is desirable to make a non-disclosure order in relation to Document E because of the confidential nature of the information in the document.

Document recording withdrawal of application for consent to special medical treatment – Document D

8 One of the friends applied to the Guardianship Tribunal in March 2002 for consent to special medical treatment being administered to the uncle. Apparently a change in circumstances meant that the consent was no longer needed. The friends did not refer specifically to the content of this document in their submissions. Indeed, they treated this document as falling into the same category as documents A, B and C, which it clearly does not. The document contains highly sensitive personal information about the uncle which is not relevant to any issue that was before the Guardianship Tribunal. In those circumstances I am satisfied that, because of the confidential nature of this document, it is desirable to make a non-disclosure order.

Documents relating to uncle’s late de facto spouse – documents A, B and C

9 Documents A, B and C are documents which relate to an application before the Guardianship Tribunal in 1996 concerning the uncle’s late de facto spouse. The documents are the investigation report conducted by an employee of the Guardianship Tribunal, the Guardianship Tribunal’s decision and a file note from the legal officer at the Guardianship Tribunal relating to a summons issue. The friends did not rely on confidentiality as a reason for the non-disclosure of these documents. Presumably they made that decision because the subject of these documents, the uncle’s de facto partner, is no longer alive. Consequently, the friends must have relied on “any other reason” under s 75(2)(d). Those reasons were as follows:

a. The documents to not relate to the uncle;

b. The documents do not relate to the subject of the proceedings before the Tribunal below, or to the Appeal;

c. The documents were peripherally considered by the Tribunal but did not form a significant or substantial part of the Tribunal's evidence, reasoning or decision.

d. The sum total use of these documents by the Tribunal is to be found at the foot of page 5 of the Decision whether the Tribunal stated:

Also, Tribunal document for a 1996 hearing in relation to [the uncle’s de facto spouse] included some evidence of a cognitive deterioration of [the uncle].
e. Otherwise, the Tribunal notes at page 7 that [the friends] are pursuing the uncle’s rights under the estate of the de facto spouse who died intestate. There is no further mention of the de facto spouse in the Tribunal’s decision.

10 The friends are also concerned about TP’s motivation and interest in relation to the uncle’s potential rights to the estate of the de facto spouse. According to the friends, the documents in dispute are not documents to which TP has needed, or will need, to respond. Accordingly, the principles of procedural fairness set out in Kioa v West (1985) 159 CLR 550 would not be infringed if disclosure was denied.

Appeal Panel’s conclusion – Documents A, B and C

11 The question for the Appeal Panel in relation to Documents A, B and C is whether it is “desirable” to make the order for any reason. In general, the public interest or other reason supporting a non-disclosure order must outweigh the public interest in the implementation of the principles of open justice and procedural fairness: QR v Commissioner of Police, New South Wales Police (GD) [2005] NSWADTAP 59. The Guardianship Tribunal had Documents A, B and C before them when they made their decision not to make an order in relation to the Power of Attorney executed by the uncle in 1997. Some of the material in those documents was referred to in the reasons for decision. In particular, the Guardianship Tribunal referred at page 5 of its reasons, to evidence of a cognitive deterioration in the uncle. That evidence may be relevant to the issue of the uncle’s capacity when he executed the Power of Attorney.

12 Subject to one qualification discussed below, none of the reasons for non-disclosure listed by the friends outweighs the public interest principles of open justice and procedural fairness. The only adverse consequence of disclosure is that the parties would potentially be burdened with more material than is strictly relevant or necessary. That does not tip the balance against disclosure.

13 The only adverse consequence of disclosure that the friends could point to was TP’s alleged interest in information relating to the uncle’s potential rights to the estate of his late de facto partner. TP strongly objected to these allegations and it is not necessary for me to make any finding about the legitimacy of the friends’ concerns. That is because any interest TP may have in her uncle’s right to the estate of his de facto partner will not be advanced by the disclosure of Documents A, B or C. It is clear from the friends’ written submissions that their concerns relate primarily to the disclosure of the financial documents, not to the Guardianship Tribunal documents about the uncle’s late de facto partner. For these reasons I am not satisfied that it is “desirable” to make a non-disclosure order in relation to Documents A, B or C.

Order

The disclosure of Documents D, E, F and G to TP is prohibited.

22/02/2006 - Replace the word "we" with "I" - Paragraph(s) 3