Ua v NSW Trustee and Guardian, UD, UE and Uf

[2010] NSWADTAP 62

Appeal Panel - External

CITATION:

UA v NSW Trustee and Guardian, UD, UE and UF [2010] NSWADTAP 62

PARTIES:

APPELLANT
UA

FIRST RESPONDENT
NSW Trustee and Guardian

SECOND RESPONDENT
UD

THIRD RESPONDENT
UE

THIRD RESPONDENT
UF

FILE NUMBER:

108003

HEARING DATES:

6 September 2010

SUBMISSIONS CLOSED:

6 September 2010

 
DATE OF DECISION: 

20 September 2010

BEFORE:

Hennessy N - Magistrate (Deputy President); Millar J - Judicial Member; Wunsch A - Non-Judical Member

CATCHWORDS:

EXTERNAL APPEAL, procedural fairness, adequacy of reasons

DECISION UNDER APPEAL:

2010/2036, 2010/743, 2010/744, 2010/2034, 2010/2036

FILE NUMBER UNDER APPEAL:

C/44048

DATE OF DECISION UNDER APPEAL:

04/07/2010

LEGISLATION CITED:

Powers of Attorney Act 2003
Guardianship Act 1987
Administrative Decisions Tribunal Act 1997

CASES CITED:

R v Australian Broadcasting Tribunal, ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Pettitt v Dunkley [1971] 1 NSWLR 376
Public Service Board of New South Wales v Osmond [1986] HCA 7; (1986) 159 CLR 656
Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430

REPRESENTATION:

APPELLANT
M Miceli, solicitor

FIRST RESPONDENT
No appearance

SECOND & THIRD RESPONDENT
C McCooe, solicitor

FOURTH RESPONDENT
B Ramjan, representative

ORDERS:

The appeal is dismissed

REASONS FOR DECISION

Introduction

1 UF is a woman in her mid-80s who lives in a nursing home. She has been diagnosed with dementia. She has four adult children: UD, UE, UA and one other daughter who was not a party to these proceedings. On 7 April 2010 the Guardianship Tribunal heard four applications:

a) an application from UE for a guardianship order for UF;

b) an application from UE for a financial management order for UF;

c) an application from UA seeking review of an enduring guardianship appointment dated 2 December 2009; and

d) an application from UA seeking review of the powers of attorney dated 25 February and 9 March 2010.

2 The Guardianship Tribunal resolved these applications by making a guardianship order and appointing the Public Guardian as UF's guardian, making a financial management order and appointing the NSW Public Trustee as her financial manager and by revoking UF's appointment of UD as her enduring guardian. In relation to the fourth application, the Tribunal decided not to review the making or the operation and effect of the Powers of Attorney dated 25 February 2010 and 9 March 2010. UA has appealed to the Tribunal against the Guardianship Tribunal’s decision in relation to the fourth application. The Guardianship Tribunal decided not to review the powers of attorney because, in the same proceedings, it had made a financial management order in relation to UF, appointing the NSW Public Trustee as her financial manager. Because the making of a financial management order suspends the power of attorney, the Tribunal apparently saw no utility in reviewing the power of attorney: Powers of Attorney Act 2003 (P of A Act) s 50.

Jurisdiction and parties

3 The Tribunal has power to hear an appeal against the Guardianship Tribunal's decision not to review the making or the operation and effect of a power of attorney: P of A Act, s 41(1). The appeal was made on a question of law. Leave was not sought for an appeal on the merits of the Guardianship Tribunal’s decision: Administrative Decisions Tribunal Act 1997 (ADT Act), s 118B(1).

4 UF was not present at the hearing. The Tribunal appointed Ms Barbara Ramjan as her representative: ADT Act, s 71(4). Ms Ramjan spoke to UF and reported to the Tribunal that nothing she said persuaded her that the Guardianship Tribunal had made an error in deciding not to review the powers of attorney.

5 The appellant, UA, was legally represented as were the second and third respondents, UD and UE. 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] HCA 13; (1980) 144 CLR 13 at 35. Ms Cho appeared for the Guardianship Tribunal.

Background

6 On 9 March 2010 UF revoked all previous powers of attorney except the appointment of UD on 25 February 2010. On 25 February 2010 UF signed a power of attorney appointing UD and giving him authority to make gifts and confer benefits. The power of attorney was subject to a condition that it not be used to sell, purchase, mortgage or in any way charge real estate or in relation to the purchase, sale, mortgaging or in any way charging shares registered on any stock exchange.

7 On 9 March 2010 UF jointly appointed UD and UE as her attorneys but did not authorise them to give gifts or confer benefits. That power of attorney was not subject to any conditions. UA applied for the Guardianship Tribunal to review the 25 February and 9 March powers of attorney.

Legislation

8 The Guardianship Tribunal has power to review the making or the operation and effect of a power of attorney. Sub-sections 36(1) and (2) of the P of A Act state that:

(1) Tribunal may review making or operation and effect of power

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.

9 These provisions give the Guardianship Tribunal an unfettered discretion to review a power of attorney or not to carry out such a review. In this case the Guardianship Tribunal exercised that discretion by deciding not to carry out a review.

Guardianship Tribunal’s decision

10 The reason the Guardianship Tribunal gave for its decision in relation to the fourth application was as follows:

After considering all of the evidence presented in the documentation and at the hearing, and taking into account the Tribunal's order appointing a financial manager for UF, the Tribunal determined not to carry out a review of the operation and effect of the purported power of attorney made by UF on 9 March 2010 (and 25 February 2010) appointing UD and UE pursuant to s 36(1) of the Powers of Attorney Act 2003.

The effect of the financial management order made by the Tribunal appointing the NSW Trustee is to make any power of attorney purportedly made by UF inoperative during the term of the financial management water. The financial order remains in place until such time as the Tribunal orders otherwise.

11 The provision to which the Guardianship Tribunal was referring was section 50(3) of the P of A Act which provides that:

A power of attorney is suspended while the estate of the principal is a managed estate.

Grounds of Appeal

12 The two grounds of appeal on questions of law were that:

a) the Guardianship Tribunal failed to afford UA procedural fairness by not giving her a reasonable opportunity to respond to a statement of UE handed up at the hearing on 7 April 2010 and by failing to allow her to question UE; and

b) the Guardianship Tribunal did not give adequate reasons for its decision.

Breach of procedural fairness

13 UA did not provide a copy of the transcript to support this application, however the Guardianship Tribunal made the following observation at page 5 of its reasons:

The hearing of this matter went beyond the allocated hearing time (almost the entire day); fortunately the Tribunal had the time available to complete the hearing on the day and canvass all of the relevant issues. The extended time required for the hearing was the result of additional material being supplied by the parties on that day and the Tribunal providing the parties with opportunities to break and consider information at appropriate points throughout the day.

14 Mr Miceli, who appeared on behalf of the appellant, UA, was also present at the Guardianship Tribunal hearing although he was refused leave to represent his client at that hearing. He conceded that he did not suggest to his client that she seek an adjournment in relation to the material handed up at the hearing and none was sought. He also conceded that UA did not ask the Tribunal for an opportunity to question UE in relation to the content of the statement.

15 While the Guardianship Tribunal is obliged to afford procedural fairness to all parties, there was no breach in this case because UA was given an adequate opportunity to respond to evidence provided at the hearing and to question UE. While UA was not represented by Mr Miceli at the proceedings, he was present and able to give her legal advice. The Tribunal gave the parties time to read through documents that had been handed up at the hearing.

Inadequate reasons

16 The Guardianship Tribunal is obliged to give each party to proceedings "formal written reasons for the decision as soon as practicable after giving the decision": Guardianship Act 1987, s 68(IB). Even though there is no statutory requirement governing the adequacy of reasons given under s 68(1B), common law principles are relevant. At common law, there is a judicial duty to give adequate reasons: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 269-70; Pettitt v Dunkley [1971] 1 NSWLR 376; Public Service Board of New South Wales v Osmond [1986] HCA 7; (1986) 159 CLR 656; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430. That duty appears to apply to tribunals as well as courts.

17 The Tribunal gave a reason for its decision namely that the powers of attorney are inoperative during the term of the financial management order. It can be inferred from its decision that the Guardianship Tribunal considered that there was no utility in reviewing the powers of attorney because it was highly unlikely that the financial management order would be revoked. While UA may disagree with this reason, the reasoning itself was adequate. There is no error of law on the ground of inadequacy of reasons.

18 It was probably unnecessary for the Tribunal to say, as it did in its reasons, that it had considered all the evidence presented in the documentation. The reason for its decision did not depend on a consideration of that evidence. It may be that the parties wrongly assumed from this comment that the Tribunal had considered the issue of UF's capacity at the time of appointing UD as her attorney on 25 February 2010 and 9 March 2010. Because the Guardianship Tribunal decided not to review the powers of attorney, it did not need to make findings about UF’s capacity at the time.

Further ground

19 Although not expressed as a ground of appeal, Mr Miceli also submitted that the Tribunal had embarked on a review of the powers of attorney by receiving documents relevant to the question of UF's capacity at the time of the making the powers of attorney. The receipt of documents does not constitute a decision under s 36(1) to review a power of attorney.

The appeal is dismissed.