TP v TR (No 2)

[2006] NSWADTAP 12

Appeal Panel - External

CITATION:	TP v TR & ors (No 2) [2006] NSWADTAP 12
PARTIES:	APPELLANT TP FIRST RESPONDENT TR SECOND RESPONDENT TS THIRD RESPONDENT TQ FOURTH RESPONDENT and DECISION MAKER Guardianship Tribunal
FILE NUMBER:	058017
HEARING DATES:	28/02/06
SUBMISSIONS CLOSED:	02/28/2006
DATE OF DECISION:	04/13/2006
BEFORE:	Hennessy N - Magistrate (Deputy President); Rees N - Judicial Member; Field B - Non Judicial Member
CATCHWORDS:	Procedural fairness - Statutory interpretation
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	C/24161
DATE OF DECISION UNDER APPEAL:	09/01/2005
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 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 Re Refugee Tribunal; ex parte Aala (2000) 75 ALJR 52 TP v TR & Ors [2006] NSWADTAP 7
REPRESENTATION:	APPELLANT In person FIRST & SECOND RESPONDENTS S Mason, counsel FOURTH RESPONDENT & DECISION MAKER E Cho, solicitor
ORDERS:	1. The decision of the Guardianship Tribunal made on 1 September 2005, to dismiss the application for review of a power of attorney is set aside; 2. That application is remitted to the Guardianship Tribunal to be heard and decided again, with the hearing of further evidence, if necessary.

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 TQ is an elderly gentleman who has dementia. In February 1997, he signed an Enduring Power of Attorney (EPA). The donees of that power are two sisters who have been long term friends of TQ. In these reasons we refer to the sister who is closest to TQ as “the friend” and to the two women collectively as “the sisters”. TQ also has a niece. She and TQ grew up in the same household and have maintained contact over the years. Although TQ is now living in a nursing home, he owns a house at Palm Beach. The sisters have maintained the house and used it intermittently over the years. With TQ’s permission, his niece and her husband had also been using the house, two or three times a year, for short holidays.

2 In 1997 the sisters’ solicitor, Mr Hodgson, prepared and witnessed the EPA. Unlike some enduring powers of attorney, the document did not contain a clause allowing the donees to benefit themselves from any decision made pursuant to the EPA. Mr Hodgson told the Guardianship Tribunal that while he could not recollect exactly what he told TQ at the time, he would probably have said that it was not appropriate to allow the sisters to benefit themselves from decisions made under the EPA. The niece did not find out that the EPA had been executed until several years later. Following some concerns by the friend that the niece had been taking things from the Palm Beach property, she instructed Mr Hodgson to write to the niece advising her that she no longer had the consent of the friend to enter the property. The relevant parts of that letter are as follows:

We act for [the sisters] the attorneys under Enduring Power of Attorney for [TQ] dated 27 February 1997.

We are instructed to inform you that although our clients had previously arranged for you and your husband to stay at [TQ’s] home at . . . Palm Beach from time to time, you no longer have the consent of the attorneys to enter the property.

We are instructed that you have acknowledged to our clients that you have removed items from the house to which you consider yourself to be entitled. A universal key to the house disappeared recently and in order to protect the house our clients have arranged for new locks to be installed. As [TQ’s] attorneys, our clients have an obligation to ensure the safety of his property.

Please be advised that if you or your husband attempt to enter the house it will be treated by our clients as trespass.

3 That letter, as well as other concerns the niece had, triggered an application to the Guardianship Tribunal for a review of the EPA. Under s 36 of the Powers of Attorney Act 2003 ( POA Act ) the Guardianship Tribunal may review the making or the operation and effect of a reviewable power of attorney. The Guardianship Tribunal “administratively closed” the niece’s initial application. After registering her dissatisfaction with that decision, the Guardianship Tribunal invited her to make a new application. Three months later, on 15 June 2004, the niece applied to the Guardianship Tribunal for a review of the EPA. The matter was heard on 1 September 2005. The Guardianship Tribunal reviewed the EPA but decided not to make any order in relation to it. The niece has appealed to the Administrative Decisions Tribunal against that decision.

Appeal Panel’s jurisdiction

4 The Appeal Panel has jurisdiction to hear appeals against the Guardianship Tribunal’s decision. (See s 67A of the Guardianship Act 1987 and s 41 of the POA Act.) 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 niece appealed on questions of law and also sought leave to appeal on other grounds.

Parties and representation

6 The niece was not legally represented at the hearing, but her husband spoke on her behalf. Ms Mason, counsel, represented the sisters. The Guardianship Tribunal is a party to the appeal and said that it wished to have an active role, 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.

The Guardianship Tribunal hearing and decision

7 The niece and her husband were present at the hearing, as were the sisters and another sister of theirs. During the course of the hearing, the presiding member requested the niece and her husband to ask any questions through him rather than directly to the person concerned. The Guardianship Tribunal said that it had the documents listed in the Investigator’s Report prepared by an employee of the Guardianship Tribunal, and commented that the parties had had a chance to look at that report. It is not in dispute that the niece was not given access to several other documents that the Guardianship Tribunal had before it, including the friend’s written submissions to the Guardianship Tribunal. The Guardianship Tribunal then explained its role. The presiding member asked the niece some questions about her relationship with TQ and the arrangements she had with him for the use of the Palm Beach house. The niece explained that she had taken a dinner set from the house because it belonged to her. She said she visited her uncle regularly and described his gradual deterioration since the early 1990’s. The niece then mentioned other concerns she had about the decisions the friend had made on her uncle’s behalf and whether she had authority to make those decisions.

8 The Tribunal then questioned the friend about TQ’s capacity from around 1996 and went on to ask her what items had gone missing from the house. The friend responded that she was more concerned about the fact that a key had gone missing rather than items of china or furniture. That is apparently what prompted her to instruct her solicitors to write to the niece saying that she was not able to use the house. The niece denied taking the key or any other item that did not belong to her. The Tribunal then telephoned Mr Hodgson and questioned him about his role in preparing and witnessing the EPA. The Tribunal did not invite any of the parties to question Mr Hodgson. Following Mr Hodgson’s evidence, there was a short adjournment. Conciliation was attempted but when it failed the Guardianship Tribunal made the decision to dismiss the application.

Issues

9 The issues that arise in this appeal are as follows:

1. Did the Guardianship Tribunal make any errors of law in the manner in which it interpreted and applied the relevant provisions in the POA Act ?

2. Did the Guardianship Tribunal make an error of law by failing to accord the niece procedural fairness?

Interpretation and application of Powers of Attorney Act

10 Relevant provisions. The Guardianship Tribunal’s jurisdiction to hear and determined the niece’s application comes from s 36(1) and (2) of the POA Act:

(1) A review tribunal may, on the application of an interested person, decide to review the making or the operation and effect of a reviewable power of attorney or not to carry out such a review.

(2) As a consequence of reviewing the making or operation and effect of a reviewable power of attorney, a review tribunal may decide whether or not to make an order under this section.

11 Section 36(1) is a grant of jurisdiction to the Guardianship Tribunal to do three things:
(1) to review the making of a reviewable power of attorney,

(2) to review the operation and effect of a reviewable power of attorney and

(3) to decline to do either (1) or (2).

12 The kinds of orders the Guardianship Tribunal may make are enumerated in s 36(3) and s 36(4). The Guardianship Tribunal was aware of the kinds of orders it was able to make and listed some of them at page 2 of its Reasons for Decision. For example, in relation to the making of a POA, the Guardianship Tribunal has a discretion to order that the POA is invalid if the principal did not have the capacity necessary to make it. In relation to the operation and effect of a power of attorney, the Guardianship Tribunal has a discretion, among others, to revoke or vary the power of attorney, to remove an attorney and appoint a replacement or to direct an attorney to provide records and accounts. There is also a “catch all” power to make “such other orders as the . . . tribunal thinks fit.” This power may be used to make orders of a declaratory nature in which the extent of an attorney’s powers are described. No orders were made in this case.

13 Standing. The Guardianship Tribunal’s jurisdiction may only be invoked “on the application of an interested person”. That term is defined in s 35(1) of the POA Act. For present purposes the key part of that definition is s 35(1)(d) which stipulates that an “interested person” includes “any other person who, in the opinion of the review tribunal, has a proper interest in the proceedings or a genuine concern for the welfare of the principal”. It is a threshold issue of standing in each case for the Guardianship Tribunal to determine whether the applicant is an “interested person”. The Guardianship Tribunal did not consider this issue in any detail. The transcript reveals that the niece was described as the applicant from the outset and the Guardianship Tribunal recorded in its Reasons for Decision that, “The Tribunal accepted that [the niece] was an ‘interested person’ entitled to make the application”. Once the niece was given the status of the applicant in proceedings, under s 36(1) of the POA Act she was entitled to expect that the Guardianship Tribunal would exercise its statutory jurisdiction and that when exercising that jurisdiction it would accord her procedural fairness in her role as a party to the application.

14 Exercise of statutory jurisdiction. Ms Mason, acting for the sisters, submitted that the niece had not asked the Tribunal to rule on the validity of the friend’s decision to exclude her from the Palm Beach property, but had merely asked it to make a finding as to whether the friend had personally benefited from that decision. For the reasons set out below, we do not accept that submission. In her application to the Guardianship Tribunal dated 18 March 2005 the niece made it clear that she wanted the Guardianship Tribunal to review the making of the EPA (see para 3 of the application) and to review the operation and effect of the EPA (see para 1 and 2 of the application). In that application, the niece asked the Guardianship Tribunal to “make orders appropriate to my request in the letter attached to this application.” She also said that she wished the Guardianship Tribunal “to order the enduring Power of Attorney to comply with the Act. Alternatively, for the appointment of a supervising manager.” In the attached letter, the niece detailed the ways in which she said the decision to exclude her from the Palm Beach house had breached the EPA. We are satisfied on the basis of the application and the submissions in the attachment, that the niece was asking the Guardianship Tribunal to review the making and the operation and effect of the EPA and requesting a remedy under s 36(2) of the POA Act.

15 The Tribunal dealt with the one of the niece’s concerns in its reasons for decision at page 8. The relevant portions are extracted below:

The only concern the Tribunal had about the way the power of attorney has been used was about [the niece] being denied any use of the Palm Beach property. [TQ] had been pleased with the idea of his niece using the property and the Tribunal was inclined to think that [the friend’s] attitude to this was unreasonably rigid. However the Tribunal saw this as in no way a sufficient basis to remove [the sisters] from the role of attorneys. [TQ] had chosen them as attorneys with a backdrop of them having had a central role in this life for many years. [The friend] in particular has also shown an ongoing devotion to his welfare as his health has declined. To have removed [the sisters] as attorneys would have been a disproportionate response to the one issue of concern.

The Tribunal did consider varying the power of attorney to include a requirement for the attorneys to allow [the niece and her husband] to have stays in the property. However, in view of the very high level of tension between [the sisters] and [the niece] and the friend’s assertion that, if the [niece and her husband] were to stay in the property, she would need to remove things from it, the Tribunal did not feel this was a practicable approach.

. . .

All in all, the tribunal decided that it should not make any order in relation to the power of attorney and dismissed the application.

16 Ms Mason submitted that in its Reasons for Decision the Guardianship Tribunal tacitly accepted that the EPA did not allow the sisters to benefit themselves from decisions made under the instrument. According to Ms Mason, the Guardianship Tribunal did not see the friend’s conduct as benefiting herself, therefore there was insufficient reason to revoke the EPA. Ms Mason submitted that while the Guardianship Tribunal could have made a declaration under s 36(4)(g) that the decision to exclude the niece from the Palm Beach house was beyond power, it did not do so, and as its jurisdiction is discretionary, not mandatory, that does not constitute an error of law.

17 The Tribunal considered whether or not the friend’s decision about the Palm Beach house warranted her removal as donee of the EPA and whether or not it should vary the EPA to, in effect, reverse that decision. However, the Tribunal did not determine the question that the niece had asked it to decide and that it had jurisdiction to decide, namely whether the decision about the Palm Beach house was within the friend’s power to make. Although the Tribunal has jurisdiction to answer that question when reviewing the operation and effect of a power of attorney, it did not do so. Instead, the Tribunal merely decided that TQ would not have wanted the sisters’ use of the property to stop. Consequently the Guardianship Tribunal made an error of law by misconstruing its function and powers under s 36(1). Had the Tribunal answered the question that the niece was asking, and found that she did not have power to exclude her from TQ’s Palm Beach house, it could have made a declaration to that effect pursuant to s 36(4)(g). However, the Tribunal’s error was not failing to make a declaration under s 36(4)(g), but failing to appreciate that its statutory function was to review the operation and effect of the EPA which meant, on the facts of this case, determining whether or not the friend had the power under the EPA to exclude the niece from the Palm Beach house. On that basis alone, the decision should be set aside and remitted to the Guardianship Tribunal to be heard and decided again, with the hearing of further evidence if necessary.

18 The Guardianship Tribunal had the option of declining to carry out the review. It did not exercise that option. Consequently, when faced with an application to review both the making and the operation and effect of an enduring power of attorney it was obliged to perform those reviews according to law. The Guardianship Tribunal failed to review the operation and effect of the EPA and thereby misconstrued its jurisdiction and made an error of law.

19 Capacity to make the EPA. A final point which the niece raised was that the Guardianship Tribunal was not satisfied that TQ lacked capacity to make the EPA in 1997. For that reason, it decided not to make an order in relation to the making of the EPA. The decision of the Guardianship Tribunal was based mainly on the evidence of Mr Hodgson. There may have been other relevant evidence available such as hospital or other medical records. While the Tribunal is not obliged to gather all the evidence which may be relevant to an application, if a real issue is raised about the capacity of the donor of the power, the Tribunal may have to decide what steps, if any, it should take to satisfy itself that the donor had capacity.

Breach of procedural fairness

20 There are three instances where the niece alleges that the Guardianship Tribunal has breached its obligation to afford her procedural fairness. Those instances are:

(i)) failing to communicate the substance of the friend’s submission to the niece and failing to give her a reasonable opportunity to respond;

(ii) failing to give the niece a reasonable opportunity to respond to the oral evidence given by the friend; and

(iii) failing to allow the niece to question Mr Hodgson.

21 There is no specific provision in the Guardianship Act which obliges the Guardianship Tribunal to afford parties procedural fairness. In several cases the Appeal Panel has addressed the question 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; 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, the Guardianship Tribunal’s duty and power to deal with the niece’s application in this case is “conditioned upon the Tribunal’s observance of the requirements of procedural fairness.”

22 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 niece 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 or the oral evidence was “credible, relevant and significant” material adverse to the niece?

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

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

25 Interest, right or legitimate expectation ? In previous cases the Appeal Panel has described what comprises interests, rights or legitimate expectations in relation to Guardianship Tribunal proceedings. (See, for example, GM v Guardianship Tribunal & Ors; GM v Protective Commissioner & Ors [2003] NSWADTAP 59; KA v Public Guardian & Ors [2004] NSWADTAP 25 and KV v Protective & Ors; KW & Ors v KV & Ors (No.2) [2004] NSWADTAP 48). As a party to the proceedings the niece is, as a general rule, entitled to present her case, question witnesses and be made aware of materials which are before the Tribunal. One qualification to this principle is that the material must be credible, relevant and significant. Unless there are express provisions in the Guardianship Act which deny her these procedural safeguards, or unless there are good reasons to depart from the operation of the general common law rules concerned with a fair hearing, the general rule should be applied.

26 Credible, relevant and significant material adverse to the niece? The friend’s submission to the Guardianship Tribunal dated 25 August, 2005, contains numerous allegations about the niece’s conduct. They include the following:

-that the niece took china and furniture from the house without asking;

-that the niece took the master key from the house;

-that the niece and her husband have been taking food and photos from TQ at the nursing home;

-that some of her things, including a fruit bowl had gone missing from the house;

-that prior to March 2004, the niece and her husband did not visit TQ regularly;

-that she has done everything possible over the years to maintain a good relationship with the niece and her husband; and

-that she had not received any financial benefit from her use of the house.

27 When reviewing the operation and effect of the EPA, a relevant issue is whether the friend had the power to exclude the niece from the Palm Beach property. Any allegation that the niece had been removing goods from the property unlawfully is relevant to that question because it is incumbent on the friend, as the donee of the power, to safeguard the content and value of TQ’s property. Consequently, the allegations about removing items from the Palm Beach property are relevant. They are also credible and significant matters. In relation to the evidence of Mr Hodgson, he said that the fact that TQ still had a driver’s licence was some evidence of capacity. It was alleged that TQ surrendered his driver’s licence shortly after this time. Mr Hodgson also said that TQ knew the colour of his own car and that was “one of the things he was right about”. The niece said that she would have liked to ask Mr Hodgson which things TQ had not been right about. Presumably that line of questioning may have elicited evidence about TQ’s capacity at the time.

28 Substance of material and opportunity to respond? The Guardianship Tribunal did not give the niece a copy of the submissions made by the friend dated 25 August 2005. The first time she saw it was about a week before the appeal hearing. The niece said she would have liked an opportunity to respond to the matters in that document. The Guardianship Tribunal did put to the niece certain assertions and allegations that the friend had made including the nature of her relationship with TQ and whether she had ever taken a key from the property. The presiding member telephoned Mr Hodgson and asked him several questions. The presiding member then said, “I think that’s all I wanted to ask. Thanks for your time, Mr Hodgson.” (See transcript page 38.) No invitation was extended to any of the parties to ask Mr Hodgson any questions either personally, or through the presiding member.

29 Ms Mason submitted that there has been no breach of the rules of procedural fairness because while the niece was not invited by the Guardianship Tribunal to ask questions of the friend or Mr Hodgson, she did not seek to ask any questions, nor did she complain at the time. In addition, at the end of the hearing, the Guardianship Tribunal invited the niece to raise any other matters. According to Ms Mason, it is now too late for the niece to complain that she was denied procedural fairness. We do not accept that either of these occurrences means that the niece had a reasonable opportunity to respond to the matters raised by the friend or by Mr Hodgson. The Tribunal controlled the proceedings and regulated the manner in which the niece was permitted to respond to the evidence of the friend and Mr Hodgson. None of the Tribunal members gave her an opportunity to directly question either of those people, nor to choose the assertions and allegations she wished to challenge. Instead, the Guardianship Tribunal determined the issues to which the niece was invited to respond. The Guardianship Tribunal has failed to give the niece a reasonable opportunity to respond to the evidence of the friend and of Mr Hodgson. In that respect, the Guardianship Tribunal has breached its obligation to afford her procedural fairness.

30 Although s 59(b) of the Guardianship Act says that a party to proceedings before the Tribunal may “cross-examine any witness called by another party”, the niece’s right to question Mr Hodgson does not flow from that provision, but from the common law rules of procedural fairness. Section 59(b) makes it clear that the ‘usual’ rules about questioning witnesses should apply in Guardianship Tribunal proceedings. It is not, however, an exhaustive statement of the circumstances in which the Guardianship Tribunal is obliged to permit the parties to question a witness. (See Applicant Veal of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 at [10].)

31 Ms Cho for Guardianship Tribunal said that because the Guardianship Tribunal arranged for Mr Hodgson to attend by phone, and he was not a witness called by a party, the provisions of s 59 do not apply. For the reasons we have already given, even if this submission is correct, it does not absolve the Guardianship Tribunal of its obligations to afford procedural fairness to the parties. That obligation includes a requirement that the Guardianship Tribunal should make it clear to all parties that they are entitled to a reasonable opportunity to ask questions of any witness.

32 Exceptional circumstances? The final question is whether there were any exceptional circumstances which mean that procedural fairness should not be afforded to the niece? No exceptional circumstances were raised by any of the parties in relation to the documents or evidence under consideration. There was no question of confidentiality in relation to that material. Even if there was a confidentiality issue, for example in relation to the identity of the author of a certain document, the decision-maker should usually attempt to convey the substance of the information contained in the document to the party entitled to procedural fairness. (Applicant Veal of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005]HCA 72 at [29].) We note that there was a confidentiality issue raised in relation to other documents and that the Appeal Panel has handed down a decision in relation to the disclosure of those documents: TP v TR & Ors [2006] NSWADTAP 7.

33 Conclusion. It follows from our reasoning that failing to communicate the substance of the friend’s submission to the niece and failing to give her a reasonable opportunity to respond to it; failing to give the niece a reasonable opportunity to respond to the oral evidence given by the friend; and failing to give the niece a reasonable opportunity to respond to Mr Hodgson’s evidence all amount to a denial of procedural fairness.

Administrative closure

34 The final matter which deserves some mention, despite the fact that it was not a ground of appeal, is the fact that the Guardianship Tribunal “administratively closed” the niece’s first application which she made in 2004. This is an appeal from the second application, however we note that the basis for the decision to summarily dismiss the first application was that there was a lack of evidence as to TQ’s capacity at the time he signed the EPA, that it was unclear how reviewing the EPA would be in TQ’s best interests and that the EPA appeared to have been made in a proper manner. After the niece expressed her concern about that course of action, the Registrar of the Guardianship Tribunal wrote to her explaining that she had not provided sufficient evidence to support her application and that if there was a change in TQ’s circumstances, a further application could be made. The niece requested the Guardianship Tribunal to “re-open” her case. As we have said, the Guardianship Tribunal sent the niece another application form and she made a new application.

35 We make two comments on the practice of “administrative closure”. First, the decision to ‘administratively close’ the initial application was made by a Deputy President sitting alone. There is no power in the Guardianship Act authorising such a decision. Section 51 of the Guardianship Act stipulates that the Tribunal must be constituted by no fewer than three members when performing its functions. Section 51A sets out limited circumstances in which the Tribunal may be comprised of one member. They are essentially procedural matters. There is no grant of power for a one-member Tribunal to summarily dismiss an application under s 36 of the POA Act. Secondly, the act of summarily dismissing the niece’s application without granting her a hearing was a denial of procedural fairness. There is nothing in the Guardianship Act which permits the Tribunal to act in that way.

Orders

1. The decision of the Guardianship Tribunal made on 1 September 2005, to dismiss the application for review of a power of attorney is set aside.

2. That application is remitted to the Guardianship Tribunal to be heard and decided again, with the hearing of further evidence, if necessary.