Up v NSW Trustee and Guardian
[2010] NSWADTAP 69
•29 October 2010
Appeal Panel - External
CITATION: UP v NSW Trustee and Guardian [2010] NSWADTAP 69 PARTIES: APPELLANT
UPFIRST RESPONDENT
NSW Trustee and GuardianSECOND RESPONDENT
URTHIRD RESPONDENT
FOURTH RESPONDENT
US
UQFILE NUMBER: 108005 HEARING DATES: 24 September 2010 SUBMISSIONS CLOSED: 24 September 2010
DATE OF DECISION:
29 October 2010BEFORE: Hennessy N - Magistrate (Deputy President); Millar J - Judicial Member; Wunsch A - Non-Judical Member CATCHWORDS: EXTERNAL APPEAL – procedural fairness DECISION UNDER APPEAL: Application for Guardianship Order FILE NUMBER UNDER APPEAL: C/41441 DATE OF DECISION UNDER APPEAL: 04/20/2010 LEGISLATION CITED: Guardianship Act 1987 CASES CITED: R v Australian Broadcasting Tribunal, ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13
Hopkins v Smethwick Board of Health (1890) 24 QBD 712
Titan v Babic (1994) 49 FCR 546
LA v Protective Commissioner [2004] NSWADT 39
Kioa v West (1985) 159 CLR 550
Carew v Protective Commissioner and Ors [2005] NSWADTAP 13REPRESENTATION: APPELLANT
In personFIRST RESPONDENT
No appearanceSECOND RESPONDENT
No appearanceTHIRD RESPONDENT
FOURTH RESPONDENT
In person
D Norman, solicitorORDERS: 1.The Guardianship Tribunal's orders in relation to UQ dated 20 April 2010 are set aside
2.The matter is remitted to the Guardianship Tribunal to be heard and decided again with the hearing of further relevant evidence 3.This decision takes effect on the date the Guardianship Tribunal decides the matter again.
Introduction
1 UQ is an elderly man with dementia and other disabilities who resides in an aged care facility. He has nine adult children. Following an application from one of his sons, UR, the Guardianship Tribunal appointed the Public Guardian to make decisions for UQ in relation to accommodation, health care, medical and dental consent and services. Prior to that order being made, UR had been making decisions for his father. UR applied for a guardianship order because he did not want to continue to make decisions on behalf of his father given the conflict between himself and some of his siblings. The Guardianship Tribunal made a guardianship order and appointed the Public Guardian. One of UR’s sisters, UP, has appealed to the Appeal Panel against the Guardianship Tribunal's decision.
Parties to the appeal
2 UP and US, another of UR's siblings, attended in person. UR did not appear. Mr David Norman from the Mental Health Advocacy Service represented UQ. He said that he had visited UQ on 7 September 2010 and that he was confused about why the matter was before the Tribunal. Nevertheless he understood that he would be separately represented at the hearing. During the conversation UQ mentioned ‘strong divisions within the family’ and became quite upset.
3 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.
The Guardianship Tribunal hearing
4 On 10 July 2009, five months before UR’s application, the Guardianship Tribunal had made a financial management order appointing the NSW Trustee as UQ’s financial manager. On the same day, the Guardianship Tribunal also considered whether to make a guardianship order but decided that there was no need to make a formal order because UR was able to make informal decisions on his father’s behalf.
5 The hearing of UR’s application took place on 20 April 2010 at Penrith. About three weeks before the hearing, on 29 March 2010, the Guardianship Tribunal sent a notice of hearing to all UQ’s adult children, including UP. On 13 April 2010, UP and one of her sisters, US, applied to be joined as parties to the proceedings. On 15 April 2010 the joinder application was heard and UP and US were joined as parties.
Legislative requirements for guardianship orders
6 The matters about which the Guardianship Tribunal must be satisfied before making a guardianship order, and the considerations it must take into account, are set out in s 14 of the Guardianship Act 1987:
- (1) If, after conducting a hearing into any application made to it for a guardianship order in respect of a person, the Tribunal is satisfied that the person is a person in need of a guardian, it may make a guardianship order in respect of the person.
(a) the views (if any) of:(2) In considering whether or not to make a guardianship order in respect of a person, the Tribunal shall have regard to:
(i) the person, and
(ii) the person’s spouse, if any, if the relationship between the person and the spouse is close and continuing, and
(iii) the person, if any, who has care of the person,
(b) the importance of preserving the person’s existing family relationships,
(c) the importance of preserving the person’s particular cultural and linguistic environments, and
(d) the practicability of services being provided to the person without the need for the making of such an order.
7 These provisions require the Guardianship Tribunal to undertake a two step process before making a guardianship order:
a) the Guardianship Tribunal must be satisfied that the person is a “person in need of a guardian”, that is
b) if it is satisfied of those matters, the Guardianship Tribunal must consider whether it should exercise its discretion to make a guardianship order taking into account the considerations in s 14(2).
(i) that the person has a disability and
(ii) that, because of that disability, the person is totally or partially incapable of managing his or her person
8 Finally, if the Guardianship Tribunal considers that a guardianship order should be made, it must determine whom to appoint as the guardian. Section 15(3) of the Guardianship Act states that:
A continuing guardianship order appointing the Public Guardian as the guardian of a person under guardianship shall not be made in circumstances in which such an order can be made appointing some other person as the guardian of the person.
9 Section 4 sets out the principles which the Guardianship Tribunal must observe when exercising any function under the Guardianship Act:
(a) the welfare and interests of such persons should be given paramount consideration,It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles:
(b) the freedom of decision and freedom of action of such persons should be restricted as little as possible,
(c) such persons should be encouraged, as far as possible, to live a normal life in the community,
(d) the views of such persons in relation to the exercise of those functions should be taken into consideration,
(e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,
(f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,
(g) such persons should be protected from neglect, abuse and exploitation,
(h) the community should be encouraged to apply and promote these principles.
10 All parties agreed with the Guardianship Tribunal that UQ was a “person in need of a guardian” and that the first step in the process had been satisfied. The parties also agreed that he was a person for whom a guardianship order could be made. The issues in dispute were whether there was a need for a formal guardianship order and, if so, who should be appointed as guardian.
11 When conducting proceedings, the Guardianship Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks fit. In addition, proceedings shall be conducted with as little formality and legal technicality and form as the circumstances of the case permit: Guardianship Act, s 55(2).
Guardianship Tribunal’s decision
12 The Guardianship Tribunal summarised the evidence and concluded that UQ was a person who has a disability, being cognitive impairment consequent upon dementia, so that he is at least partially incapable of managing his person and needs supervision. The Guardianship Tribunal concluded that he was unable to make informed decisions independently. The Guardianship Tribunal also noted that UQ’s condition is deteriorating and he may need to move to higher level care accommodation. There will be an ongoing need for decisions to be made about UQ's health care and consent to medical and dental treatment and services. The Guardianship Tribunal did not consider that such decisions could be made informally because of the level of mistrust and conflict within the family. The Guardianship Tribunal concluded that the Public Guardian should be appointed because the appointment of a family member would increase the probability of continuing conflict in the family. The Guardianship Tribunal reasoned that that would not be in UQ 's best interests nor would it assist the maintenance of his relationships with all family members.
Grounds of appeal
13 As well as setting out questions of law in the Notice of Appeal, UP handed up written submissions at the hearing. The questions of law she identified are summarised below. The Guardianship Tribunal:
1. denied her procedural fairness by giving her inadequate notice of the hearing;
2. denied her procedural fairness by not giving any notice of the hearing to two of UQ's sons and by failing to contact another son by phone during the hearing;
3. denied her procedural fairness and breached ss 4, 14 and 58 of the Guardianship Act by not ensuring that UQ was present at the hearing to provide his views;
4. denied her procedural fairness by not providing all the parties with a copy of relevant documents including the Investigator’s Report prior to the hearing;
5. denied her procedural fairness by not advising parties in advance that they could apply to be appointed as UQ's guardian during the hearing;
6. denied her procedural fairness by limiting the hearing time to two hours, not giving parties an adequate opportunity to present their case, and not advising parties in advance of the names of people who would be attending the hearing so that an application could be made to provide suitable security arrangements;
7. breached s 55(2) by conducting the proceedings informally given the strong personalities and potential behaviour of some family members;
8. breached s 4 by not giving paramount consideration to UQ's welfare and interests and breached s 14 by not taking into account the importance of preserving family relationships;
9. breached s 15(3) by appointing the Public Guardian in circumstances there were no findings as to whether family conflict prevented appointing some other person to be the guardian.
14 Although UP also indicated on the Notice of Appeal that she was seeking leave to appeal on grounds other than questions of law, each of her grounds identified a question of law.
15 UR wrote to the Tribunal asking us to compare some correspondence UP had written with the Guardianship Tribunal's reasons for decision. By doing so he was wishing to highlight inconsistencies in UP’s written statements. None of those matters was were relevant to any issue in the appeal.
Ground 1- inadequate notice
16 The Guardianship Tribunal prepared and sent the notices of hearing on 29 March 2010. UP says that she received notification of the hearing on 6 April 2010 which was the Tuesday after Easter. Consequently she had 13 days’ notice of the hearing. She was not joined as a party until 15 April 2010. On 12 April 2010 UP wrote to the Guardianship Tribunal saying:
I would like to identify that the notification of this hearing is insufficient time to allow concerned parties to deal with this matter thoroughly regarding written submissions and also that given the fact that [UQ] is stable in terms of health, lifestyle and accommodation, as well as the ongoing management of [UQ 's] legal and financial affairs by the New South Wales Trustee and Guardian, I am dismayed that this matter has come before the New South Wales Guardianship Tribunal particularly given the matter has been before the Tribunal less than 12 months ago.
17 This letter was not in the bundle of documents considered by the Guardianship Tribunal at the hearing on 20 April 2010. Ms Cho, representing the Guardianship Tribunal, said that it would not have been included because it related mainly to the joinder application which had already been determined.
18 When her application to be joined was heard on 15 April, the presiding member told UP that there was insufficient time for an adjournment application to be made before the hearing and she should make that application on the morning of the hearing. The reason UP gave for not applying for an adjournment on the morning of the hearing was that, given her previous experience with the Tribunal, she did not think that such an application would be granted.
19 There is no requirement in the Guardianship Act to serve notice of a hearing within a certain time frame. Despite the absence of any statutory notice period, the rules of procedural fairness require that a person whose interests are affected by a decision be given adequate notice of the hearing. Adequate notice includes being given reasonable notice of the time, date and location of the hearing: Hopkins v Smethwick Board of Health (1890) 24 QBD 712 at 715.
20 UP had 13 days’ notice of the hearing. While that is a relatively short time, we regard it as adequate in all the circumstances. She was able, in that time, to prepare written submissions which she made available to the Guardianship Tribunal.
21 A related issue is whether the Guardianship Tribunal should have alerted UPQ to the fact that she could apply for an adjournment. There was no evidence that UP misunderstood procedural requirements or the nature of the application: Cf Titan v Babic (1994) 49 FCR 546 per Northrop, Neaves, Ryan, French and O’Loughlin JJ. UP also knew that if she needed more time to prepare for the hearing, she could have applied to the Guardianship Tribunal for an adjournment. It was her decision not to do so.
Ground 2- no notice to interested persons
22 According to UP, two of her brothers, Y and Z, did not receive notice of the hearing. UP said that another brother told her that he had expected the Guardianship Tribunal to phone him during the hearing but it had not done so.
23 Ms Cho advised that interested persons sometimes make themselves available to appear by phone. The Tribunal may advise them that they will be contacted if needed, however there is no obligation to do so.
24 On the application form UR wrote that he did not know Z’s address but he provided an address for Y. Ms Cho provided a document which suggested that notice was sent to each of the siblings. The address for Y was the same address as UR had provided in the application. There is no evidence as to how the Tribunal obtained an address for Z. UP submitted that the Guardianship Tribunal should not rely on addresses provided when the application was lodged which, in this case, was five months previously. She said the Guardianship Tribunal should have phoned the parties to make sure that their addresses were up-to-date.
25 There is no statutory obligation on the Guardianship Tribunal to send a notice of hearing to persons other than parties to the proceedings. Consequently, there can be no error of law in failing to send notices to Y and Z or sending those notices to the incorrect address. Nor is it an error to fail to telephone a person who is not a party to the proceedings so that they may participate in the hearing. Ms Cho nevertheless advised that the practice is to send a notice of the hearing to persons having an interest in the proceedings. The Tribunal did so in this case. It is not an error of law for the Guardianship Tribunal to fail to phone each interested person to check their address before sending them information.
Ground 3-UQ not present at the hearing, either in person or by phone, to give views and views not taken into account
26 UQ did not attend the hearing. He was represented by a separate representative, Ms Danis.
27 In the Investigation Officer’s report, the following ‘Note to Tribunal’ appears:
Ms Junge has advised that UQ may be too distressed to attend the hearing in person. She explained that she will discuss the matter with Sr Sultana and with Dr Castellino. UQ will otherwise be available by phone to speak to the Tribunal.
28 Ms Junge is the care manager of the aged care facility where UQ lives. None of the parties mentioned this note during the Appeal Panel hearing, however, it explains what was said at the hearing. At the commencement of the hearing the presiding member said,
I note that UQ is not present. He was not able to attend?
29 The transcript records that UR replied as follows:
It was recommended by his (indistinct) manager that (indistinct) but she would be available for telephone contact if the Tribunal wished to do (indistinct).
30 Even though some of this answer could not be transcribed, it reflects the note that the investigation officer made in the investigation report. Later in the hearing the Tribunal sought Ms Danis' view as to whether they should speak to UQ by phone.
Member: Thank you. I seek your view, too, Ms Danis on whether we should attempt to speak to UQ. It might be very distressing over the phone. You have obtained some views. Have a think, I'll get back to you.
Ms Danis: Yeah. I don't think it's ideal by far.
Member: No, I don't either.
Ms Danis: It's ideal but if people say hello to him (indistinct)
Member: Is he expecting us, do you think?
Ms Danis: I don't. I don't think he ever would retain the details.
Member: Yes. We’ll be open to it, but it may be that it may be difficult for him to express a meaningful view anyway. I mean even a year ago I think his impairment was described as ‘global’ from moderate to severe.
31 After speaking to Ms Junge, the presiding member asked her the following question:
Member: We understand that given that agitation and panic and things you've described, and also, the difficulty for UQ to express a view that it probably wouldn't be advisable for us to speak to him. Do you have an opinion on that?
Ms Junge: I totally agree with that. I think that if he was to talk to you now, or even if he was to attend, we discussed that that could make symptomatic which is not what we want.
32 In its reasons for decision the Guardianship Tribunal said:
The Tribunal was advised that UQ would have difficulty expressing a view to the Tribunal because his disability. The Tribunal was advised by the Care Manager, and this was not disputed by those at the hearing, that UQ would experience significant agitation and distress if he attended the Tribunal hearing. Ms Danis indicated that at a previous hearing, where she also appeared as separate representative, there was evidence of such distress and agitation. Accordingly, the Tribunal was not able to discuss the application with UQ.
33 UP made the point that the Guardianship Tribunal did not refer in its reasons for decision to a comment in the Investigator’s Report which appeared under the heading ‘Views of the person”:
In a phone conversation on 13 April 2010 UQ advised that he does not agree with the application. He said he would rather have an informal arrangement with UP making decisions for him.
34 According to UP, UQ’s non-attendance meant that the Tribunal breached s 58(1) of the Guardianship Act which provides that:
(1) In any proceedings before the Tribunal, the parties to the proceedings may appear in person or, by leave of the Tribunal, be represented by an Australian legal practitioner or an agent.
35 In addition, UP submitted that because UQ was not present at the hearing to provide his views, the Guardianship Tribunal breached s 14(2) and s 4 of the Guardianship Act.
. Neither s 58 nor any other provision of the Guardianship Act requires that the subject person be physically present at the hearing. If a separate representative is appointed, the expectation is that that person would decide whether the subject person should attend in person. In LA v Protective Commissioner [2004] NSWADT 39, the Appeal Panel said at [25] that:
. . .[A]ttendance at a hearing will serve no purpose unless the person is willing and able to participate in the proceedings, even if that participation is limited. If the Guardianship Tribunal has sufficient probative evidence to satisfy itself that the subject person is physically, mentally or emotionally unable or unwilling to attend and participate in the hearing, or that for some other reason it would not be in the person’s best interests for them to do so, there will be no breach of the hearing rule by reason of their non-attendance. That statement must be qualified where the unwillingness or inability to attend is temporary or can be overcome by some form of reasonable accommodation. In those cases the Tribunal should consider options such as vacating or re-locating the hearing or arranging for the person to participate by phone.
37 According to Aronson et al, Judicial Review of Administrative Action, 4th ed, Law Book Co 2009 at p 608:
Parties who are not able to participate effectively in a hearing which involves serious consequences for them must, as a general rule, be assisted to the extent that is required to overcome the difficulty that inhibits their participation (such as language or communication problems) so that they may participate in the hearing in an effective and genuine manner. If the party affected cannot arrange this assistance, it will usually fall to the decision maker to do so.
38 In the circumstances of this case because Ms Danis appeared as UQ’s representative, the Guardianship Tribunal did not err by failing to ensure that UQ was able to participate effectively in a hearing.
39 Views not obtained or taken into account. UP’s other concern was that because UQ was not at the hearing he could not express his views directly to the Tribunal. She said that the Guardianship Tribunal is bound to take UQ’s views into account.
40 Section 14(2) requires the Guardianship Tribunal to have regard to the views (if any) of the person. Section 4 also obliges the Tribunal to take the views of the subject person into consideration.
41 Under the heading, "Note to Tribunal" the Investigator’s Report records that Ms Junge had advised the Investigations Officer that UQ might be too distressed to attend the hearing in person but she confirmed that he would be available to speak to the Tribunal by phone. This is inconsistent with Ms Junge's statement to the Tribunal recorded above when she said, "I totally agree with that" in answer to the proposition put by the presiding member that it would not be advisable for the Tribunal to speak to UQ because of possible agitation and panic. It would be surprising that Ms Junge would tell the Investigations Officer that UQ would be available to speak to the Tribunal by telephone if she thought he would find the experience distressing. Her response to the presiding member’s question appears to have come about by Ms Junge simply adopting the proposition put to her by the member.
42 It appears that the Tribunal overlooked the material on p 2 of the Investigator’s Report beside the heading "The views of the person". The entry in this part of the report indicates that the Investigations Officer had a telephone conversation with UQ in which he apparently expressed clear views about the application. Those views were that he disagrees with the application and that he would rather have an informal arrangement with UP making decisions for him. The Investigations Officer does not record any distress or agitation perceived by her when UQ expressed these views.
43 Further, on p 5 of the transcript of the hearing before the Guardianship Tribunal, Ms Danis gave the Tribunal an account of her visit the week before the hearing when she went to see UQ to discuss the matter with him. Her evidence to the Tribunal records UQ having given her his views in relation to where he was living, his contentment with his accommodation, whether his needs were being met, the level of contact he was receiving from family members and his views about life at the hostel. It appears that Ms Danis did not seek his views specifically concerning the application before the Guardianship Tribunal. Ms Danis does not say in her evidence that he was at all distressed during her visit with him when she was seeking his views although she had seen evidence of agitation on his part during a previous visit.
44 In the passage recorded above, being an exchange between the presiding member and Ms Danis at the hearing, the Member suggested that "it might be very distressing over the phone" with regard to speaking with UQ by telephone and later that "it may be that it may be difficult for him to express a meaningful view anyway". However, her suggestion of possible distress is not supported by evidence of distress being observed by either Ms Danis, according to her evidence at the hearing, nor by the Investigations Officer in her conversation with him on 13 April 2010.
45 In these circumstances it appears that because of a perception of possible distress being caused to UQ, the Tribunal decided not to seek UQ's views by telephone during the hearing even though, according to the Investigations Officer's note, Ms Junge had advised that he would be available to speak to the Tribunal by telephone and he had conveyed his views about the application to the Investigations Officer on 13 April 2010 by telephone.
46 The result is that the Tribunal has apparently not taken into account in reaching its decision the views conveyed by UQ to the Investigations Officer as recorded on p 2 of the Investigations Officer's Report and chose not to seek his views by telephone during the hearing in circumstances where there was no sufficient reason for declining to do so.
47 Having regard to the requirements of ss 4 and 14(2) of the Guardianship Act concerning the views of UQ being taken into consideration when exercising powers under the Act, the Guardianship Tribunal made an error of law by failing to take those views, as recorded in the Investigation Officer’s report, into account and/or by failing to seek UQ's views by telephone during the hearing when he was available to provide them.
48 UP informed the Tribunal that she did not receive a copy of the Investigations Officer's Report on the day of the hearing before the Guardianship Tribunal. Accordingly, she was not in a position to draw to the attention of the Guardianship Tribunal the expression of view by UQ in the telephone conversation with the Investigations Officer as set out in the report.
Ground 4 – copies of documents not provided
49 UP said that she had not received the following documents prior to the hearing:
Investigator’s Report dated 13 April 2010
Statement of Service of Notice of hearing dated 12 April 2010
Letter to the Tribunal from Dr Vana Tam dated 3 July 2010
NSW Trustee and Guardian management Status Report dated 30/3/2010
NSW Trustee and Guardian Report dated 8/4/2010.
50 Procedural fairness ordinarily requires that a person whose interests are likely to be affected by an exercise of power be given an opportunity to respond to adverse information that is credible, relevant and significant to the decision: Kioa v West (1985) 159 CLR 550 at 629 per Brennan J, at 587 per Mason J. The only document which UP did not receive which was relevant to the Guardianship Tribunal’s decision was the Investigator’s Report. Just before the hearing on 20 April, UP said attempts were made to provide parties with a copy of the report prepared by the Guardianship Tribunal’s Investigations Officer but because the photocopying facilities were not working properly, UP did not receive a copy of that document. US received the first 4 pages of the 7 page report.
51 The Investigator’s Report provided a summary of the information the investigator had obtained from parties and other interested persons prior to the hearing. The report included a record of the phone conversation where UQ expressed his views and the note to the Tribunal saying that Ms Junge had advised that UQ may be too distressed to attend the hearing in person. This information was relevant to the Tribunal’s decision.
52 Because UP did not receive the Investigator’s Report, she did not know that Ms Junge had advised that UQ may be too distressed to attend the hearing. However, she found out during the course of the hearing that that was Ms Junge’s view. She could have challenged that view during the hearing if she thought that UQ was capable of attending the hearing in person. However, UP did not know that UQ had expressed a view to the Investigation’s Officer that he would rather have an informal arrangement with UP making decisions for him. We have already found that the fact that the Tribunal did not take those views into account constitutes an error of law. The Tribunal also erred by not giving UP and the other parties an opportunity to respond to the view UQ expressed to the Investigation’s Officer.
Ground 5 – ad hoc application to be appointed as guardian
53 UP submitted that had she realised that any person could put their name forward at the hearing to be appointed as the guardian, she would have nominated herself. She said she was shocked when it was raised as a possibility on the day and when another of her siblings, who was not a party, said he would ‘put his hat in the ring’. UP said that had she been given the opportunity to put herself forward as guardian she would have provided affidavits from various family members in support of her appointment.
54 The rules of procedural fairness oblige the Guardianship Tribunal to put parties on notice of what can happen in the proceedings. In this case, that includes making the parties aware that an issue in the proceedings is who should be appointed as the subject person's guardian if such an appointment is necessary. The Guardianship Tribunal provided a file note dated 1 April 2010 in which the Investigations Officer recorded that UP was concerned about what was in the application and how to respond to it. The file note goes on to say:
I advised can propose self or anyone else as G without being party.
55 UP said that she did not recall being told that she could make an application to be the guardian and that she was focusing at the time on her application to be joined as a party.
56 No formal application is required for a person to put themselves forward as a suitable person to be appointed as a guardian once an application for guardianship has been made. There was nothing to prevent UP from nominating herself as a suitable guardian during the course of the hearing just as one of her siblings, who was not a party, did. She was aware at least during the course of the hearing that she could do so. When explaining its reasons at the end of the hearing, the Tribunal said:
UP maintained her view that we should appoint a family member, however we would have found it very difficult to have appointed UP, given the distrust that UR expresses for her; and given that UR has been involved for a long time in the medical decision-making, it would seem inappropriate that he not be able to communicate with the guardian.
57 It is apparent from this passage that the Tribunal considered UP’s submission that a family member such as herself should be appointed but rejected it, not because it lacked support from other siblings, but because of the conflict between herself and UR.
58 UP agreed that there was conflict. Consequently, there was no prejudice to UP even if she did not have sufficient time to provide further submissions as to her suitability as a guardian.
Ground 6: time limits and security arrangements
59 According to UP, the Tribunal denied her procedural fairness by limiting the hearing time to two hours, not giving parties an adequate opportunity to present their case, and not advising parties in advance of the names of people who would be attending the hearing so that an application could be made to provide suitable security arrangements.
60 The hearing lasted approximately 2 hours. UP said that parties could not cross-examine witnesses including about reports that UQ had absconded from the aged care facility. Family conflict was given as the reason for appointing the Public Guardian but the alleged conflict was not ‘proven’.
61 The transcript discloses that UP was given a reasonable opportunity to speak. The Tribunal is not required to afford equal time to each of the parties. It may hear from people who are not parties to the proceedings.
62 When asked what she would have said if she had had more time, UP said that she would have obtained affidavits from various family members as to her suitability to be guardian. As we have said, those affidavits would not have influenced the Tribunal's decision because the reason for not appointing a family member was the intensity of the conflict among the siblings.
63 UP was concerned about the lack of security arrangements at the hearing. She said:
. . . I have a long history of various serious abuse by X and it was improper of the Panel to allow him close proximity to my sister and I, particularly given that there was no security present in the room or visible on site at the (name of venue deleted) . . . Also to be allowed to dominate physically in close proximity to myself and my sister US was procedurally unfair and seriously rendered my ability and that of US to present under section 59.
64 UP did not tell the Guardianship Tribunal that she felt intimidated by the presence of her brother X. In those circumstances it did not deny her procedural fairness by failing to make security arrangements.
Grounds 7 – level of formality
65 UP submitted that the informal manner in which the hearing was conducted “allowed UR and X to dominate the hearing, to interrupt others and bully through accusations and address irrelevant matters not pursuant to the case.”
66 Section 55 of the Guardianship Act states that:
(1) The Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks fit.
(2) Proceedings before the Tribunal shall be conducted with as little formality and legal technicality and form as the circumstances of the case permit.
67 In Carew v Protective Commissioner and Ors [2005] NSWADTAP 13 , the Appeal Panel outlined the legislative context in which the Guardianship Tribunal operates and some of the difficulties that arise:
19 Legislative framework . Section 59 of the Act gives parties certain statutory rights in relation to proceedings before the Tribunal. That section provides that:
A party to proceedings before the Tribunal may:
(a) call and examine any witness,
(b) cross-examine any witness called by another party,
(c) give evidence on oath,
(d) produce documents and exhibits to the Tribunal, and
(e) otherwise adduce, orally or in writing, to the Tribunal such matters, and address the Tribunal on such matters, as are relevant to the proceedings.
20 In addition, the Tribunal may compel a witness to attend a hearing and answer relevant questions: ss 60 and 61. These provisions are all hallmarks of adversarial proceedings involving disputes between parties. In P v P (1994) 181 CLR 583 at 634, McHugh J said of the “powers and procedures” outlined in an earlier but substantially similar version of these provisions that they “resemble those of the established courts”. However, rather than resolving a dispute between parties, the Tribunal’s jurisdiction is essentially protective with the focus being on the person who is the subject of an application for a guardianship or financial management order. The only procedural accommodation of this role are provisions which are common to many Tribunals, including that the Tribunal:
- is not bound by the rules of evidence and may “inform itself on any matter in such manner as it thinks fit”: s 55(1);
- must conduct proceedings “with as little formality and legal technicality and form as the circumstances of the case permit”: s 55(2); and
- must give permission before a party can be represented by a barrister, solicitor or agent: s 58(1).
21 The fact that the Tribunal is not bound by the rules of evidence and may “inform itself on any matter in such manner as it thinks fit” does not detract from its statutory or common law responsibilities in relation to procedure. Nor does s 55(1) prescribe that proceedings should be conducted as an inquiry rather than in an adversarial manner. Although proceedings may be conducted informally, they “must be conducted according to law” and “the discretion given to the Tribunal must be exercised judicially”: Dissanayake v Baldacchino [2000] NSWRT 216; see also Warwick Entertainment Centre Pty Ltd v McKenzie [2000] WASCA 280 at [10]; Ory and Ory v Betamore Pty Ltd (in liq) (1993) 60 SASR 393 at 414 per Duggan J; and Mitchell v Canal Rocks Beach Resort [2002] WASCA 331 at [38]-[44]. Such a provision “does not override the rules of evidence, but calls for the Court to exercise its judgment as to the manner in which it will inform itself of any matter in dispute before it. It may apply the rules of evidence or it may not, and where it decides to not strictly apply the rules of evidence it should ensure that “no real injustice will result”: Northern Territory of Australia v Herbert [2002] NTSC 4 at [35] per Higgins J; see also A and B v Director of Family Services (Unreported, ACTSC, Higgins J, 31 May 1996 at [26]-[29]).
23 Consequences of Tribunal’s practice . In many respects this informal style of proceedings suits the nature of applications to the Tribunal, which are not traditional party/party disputes. However, in other ways, the lack of a formal structure both for the giving of notice of the evidence and for the giving and testing of evidence during the hearing, makes it much more difficult for the Tribunal to comply with statutory procedural requirements and common law requirements of procedural fairness.22 Practice of the Tribunal . Despite the lack of express legislative authority, the Tribunal conducts hearings in what can loosely be described as an inquisitorial manner. On the basis of the procedures adopted in this case, and the Appeal Panel’s previous experience when determining appeals from Tribunal decisions, we are aware that investigation officers make inquiries of relevant parties and witnesses prior to the hearing and prepare a report for the Tribunal. Neither that report, nor the material gathered by the Tribunal including medical reports, is generally made available to the parties prior to the hearing. Parties are not sworn or affirmed and evidence is given in response to questions from the Tribunal, rather than in a formal uninterrupted fashion. Formal cross-examination is rare. Evidence from the person who is the subject of the application is often given in the absence of the other parties and witnesses. The Tribunal then conveys the essence of that evidence to the other participants
68 The proceedings in this case were conducted in the manner described above. UP did not point to any part of the transcript which supports her assertion that UR and X dominated the hearing or interrupted and bullied others. The transcript reveals that X put his point of view after the parties had been given an opportunity to speak. The presiding member re-directed X several times when he gave irrelevant evidence. The presiding member also asked him whether there was any family member who could be accepted as a guardian despite the rift in the family. X then proposed himself as a suitable guardian.
69 On the basis of the transcript, we consider that the Tribunal conducted the proceedings with as little formality as the circumstances of the case permitted. While we make no finding as to whether X intimidated or bullied other parties present at the hearing, formality does not necessarily prevent persons present at the hearing from behaving in that way. The Tribunal conducted the proceedings in a way which allowed those who wished to present a point of view to have their say. Furthermore, the main issue in the proceedings was whether or not the level of family conflict meant that a guardian needed to be appointed and, if so, whether that person needed to be the Public Guardian. The Guardianship Tribunal gave each party a reasonable opportunity to express a view on those issues.
Ground 8 – welfare and interests of subject person and preserving family relationships
70 UP submitted that the Tribunal made an error of law by not complying with s 4 which requires that the Guardianship Tribunal to give paramount consideration to the welfare and interests of UQ. Instead, she said disproportionate consideration was given to the welfare and interests of UR. In addition, UP submitted that the Tribunal had erred by not having regard to the importance of preserving UQ’s existing family relationships as required by s 14(2).
71 The Tribunal concluded in its reasons for decision that it was in UQ's best interests that decision-making authority be vested in one person or two persons jointly. That conclusion was based on the Tribunal's finding that decision-making could not be made informally because of conflict within the family. On the question of who should be appointed as guardian, the Tribunal said:
The Tribunal places significant weight on the maintenance of these family relationships for UQ in his best interests. To appoint a family member as guardian, would, in the Tribunal's view, increase the probability of continuing conflict in the family over decisions. This would not be in UQ 's best interests, nor assist the maintenance of UQ 's relationships with all family members.
72 It is apparent from this conclusion that the Tribunal complied with the duty to observe the principle that the welfare and interests of the subject person should be given paramount consideration and to have regard to the importance of preserving the person’s existing family relationships.
Ground 9 – family conflict
73 Section 15(3) prevents the Tribunal from appointing the Public Guardian when some other suitable person can be appointed. According to UP, a suitable person was able to be appointed had the Tribunal allowed proper presentation of UQ's views as well as thorough presentation of facts from herself and US as to the suitability of an alternate candidate. As we have said, it was not the absence of evidence of a suitable person who was willing to undertake the role that persuaded the Tribunal to appoint the Public Guardian. The basis for that appointment was the ongoing conflict within the family. That was a matter about which each party had a reasonable opportunity to make submissions.
1. The Guardianship Tribunal's orders in relation to UQ dated 20 April 2010 are set aside.
2. The matter is remitted to the Guardianship Tribunal to be heard and decided again with the hearing of further relevant evidence.
3. This decision takes effect on the date the Guardianship Tribunal decides the matter again.
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