VP v Public Guardian

[2006] NSWADTAP 30

Appeal Panel - External

CITATION:	VP v Public Guardian and ors [2006] NSWADTAP 30
PARTIES:	APPELLANT VP FIRST RESPONDENT Public Guardian SECOND RESPONDENT VT THIRD RESPONDENT & DECISION MAKER Guardianship Tribunal
FILE NUMBER:	068003
HEARING DATES:	20/04/2006
SUBMISSIONS CLOSED:	05/19/2006
DATE OF DECISION:	06/07/2006
BEFORE:	Hennessy N - Magistrate (Deputy President); Montgomery S - Judicial Member; Field B - Non Judicial Member
CATCHWORDS:	Guardianship order - review - Opportunity to be heard - Opportunity to respond to adverse evidence
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	C/28845 Matter No. 2004/7014, 2005/4925
DATE OF DECISION UNDER APPEAL:	12/12/2005
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Guardianship Act 1987
CASES CITED:	Applicant Veal of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 Catherine Stephen and Monica Youd v The Guardianship Tribunal and the Public Guardian, Supreme Court of New South Wales, 29 November 1999, unreported, Windeyer J 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 R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 Re Refugee Tribunal; ex parte Aala (2000) 75 ALJR 52
REPRESENTATION:	APPELLANT In person FIRST RESPONDENT No appearance SECOND RESPONDENT J North, solicitor THIRD RESPONDENT & DECISION MAKER E Cho, legal officer
ORDERS:	1. The decision of the Guardianship Tribunal in relation to VT made on 12 December 2005, as varied by its decision on 10 March 2006, is set aside; 2. The matter is remitted to the Guardianship Tribunal to be heard and decided again with the hearing of further evidence; 3. These orders come into effect on 2 August 2006 which is 8 weeks from the date of these reasons

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

1 VT is a 97 year old woman who lives in a nursing home in rural New South Wales. She has a large extended family, including a niece, VP who is the appellant in this case. The Guardianship Tribunal originally made a decision in relation to VT in December 2004. At that time the Guardianship Tribunal made a 12 month order that she be placed under guardianship and the Public Guardian and two of VT’s relatives be appointed as joint guardians with separate functions. The Public Guardian was given the function of making decisions about where VT should live, the services she should receive and who should be able to visit her. The two relatives were given the function of making decisions about VT’s health care and whether to consent to medical and dental treatment.

2 When the order made on December 2004 was about to expire, the Guardianship Tribunal scheduled a statutory review of the order. In the meantime, the niece had also applied for a review of the order. The statutory review and the niece’s application were heard together on 12 December 2005. The Guardianship Tribunal decided to renew the guardianship order for a period of two years but to give all the functions to the Public Guardian. The niece has appealed to the Appeal Panel against that decision. Although the Guardianship Tribunal's reasons for decisions do not record that the niece was a party to the proceedings, the Guardianship Tribunal has acknowledged that she was a party and is therefore entitled to appeal against the decision.

3 After the appeal had been lodged the Guardianship Tribunal advised the Tribunal that the Public Guardian had applied to the Guardianship Tribunal for a review of the guardianship order. That application was heard on 10 March 2006 and the Guardianship Tribunal varied the order. The issue then arose as to whether that order replaces the order made on 12 December 2005. The Appeal Panel invited the parties to make written submissions on that point. The Guardianship Tribunal provided detailed submissions which satisfy us that because the orders made on 10 March 2006 arose as a result of an application for a review under s 25(2)(c) of the Guardianship Act, that order does not replace the December 2005 order: see Catherine Stephen and Monica Youd v The Guardianship Tribunal and the Public Guardian, Supreme Court of New South Wales, 29 November 1999, unreported, Windeyer J.

Appeal Panel’s jurisdiction

4 The Appeal Panel has jurisdiction to hear appeals against the Guardianship Tribunal’s decision: Guardianship Act 1987, s 67A. Section 118B(1) of the Administrative Decisions Tribunal Act 1997 (ADT Act) specifies the grounds on which an external appeal may be made:

(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 but did not seek leave to appeal on other grounds. VT did not lodge a separate appeal, but her solicitor, Ms North submitted during the course of the hearing that the Guardianship Tribunal had not afforded her client procedural fairness. The question arises as to whether, in the absence of a separate Notice of Appeal from VT, the Appeal Panel has jurisdiction to consider her grounds of appeal. We assumed, for the purposes of this appeal, that we have that jurisdiction. Because we have not upheld those grounds of appeal, that matter does not need to be finally determined in these proceedings.

Parties and representation

6 The niece appeared in person. VT was not present at the hearing but was represented by Ms North on a “best interests” basis as VT was not able to give instructions. The Public Guardian chose not to participate in the appeal. 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 and participated by phone.

Grounds of appeal

7 Each of the grounds of appeal relates to a breach of procedural fairness. VT’s ground of appeal was that although she was present at the Guardianship Tribunal’s hearing, she did not understand what was happening because she is 90% deaf and can only hear if someone speaks loudly into her left ear. The niece’s grounds of appeal were that the Guardianship Tribunal denied her procedural fairness by:

(a) rushing the hearing and not giving her an adequate opportunity to speak;

(b) taking evidence from an officer from the Office of the Public Guardian in the absence of the parties; and

(c) not alerting the niece to credible, relevant and significant adverse material that was before the Guardianship Tribunal or giving her an adequate opportunity to respond to that material.

8 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 power to make a guardianship order in relation to VT is “conditioned upon the Tribunal’s observance of the requirements of procedural fairness.”

9 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.)
10 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: Guardianship Act, s 4(g). 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. While the protective 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.)

11 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 VT and 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 VT or the niece?

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

(d) Whether there were any exceptional circumstances which mean that VT or the niece should not be afforded procedural fairness.

12 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 parties to the proceedings VT and the niece are, as a general rule, entitled to present their 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 them 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 rules should be applied.

Did the Guardianship Tribunal deny VT procedural fairness by not ensuring that she could hear what was being said during the hearing?

13 VT’s main ground of appeal was that while she was present at the hearing she did not understand what was happening because she is 90% deaf and can only hear if someone speaks loudly into her left ear. Ms North said that VT has trouble with her hearing aid and was not wearing it at the time. Ms North also said that in order for VT to have understood what was being said, she would have had to repeat everything that was said loudly into VT’s left ear. It is apparent from the Guardianship Tribunal’s reasons for decision that the Guardianship Tribunal spoke to VT in the presence of Ms North, but in the absence of the other parties. Ms North did not say that VT was not able to understand what the Guardianship Tribunal was asking her during that part of the proceedings.

14 While it is obviously desirable that everyone participating in a hearing, especially the parties, hear what is being said, there is no duty on the Guardianship Tribunal to ensure that that occurs. It would not have been practical for Ms North to repeat to VT everything that was being said. VT did not ask for an adjournment until her hearing aid was fixed, nor was there any evidence that she had requested any kind of accommodation for her hearing impairment, such as a hearing loop. In circumstances where VT was legally represented, we are not satisfied that a failure to ensure that VT heard what was being said constitutes a denial of procedural fairness.

Did the Guardianship Tribunal deny the niece procedural fairness by rushing the hearing or not giving her an opportunity to speak?

15 As we have said, the hearing rule requires that a decision maker hear a person before making a decision affecting their interests. She said that the hearing took place in Dubbo during the morning of 12 December 2005 and that the Tribunal had another hearing scheduled for the afternoon. According to the niece, the Guardianship Tribunal was rushing to finish so that they would have enough time to hear the matter listed for that afternoon. The hearing concluded and one of the Tribunal Members telephoned the niece during the lunch break to tell her the decision they had reached. The second aspect of this ground of appeal is that the niece says that during the hearing she asked for five minutes to speak but that the Presiding Member refused her permission to do so. The niece did not order a transcript of the hearing because of the cost involved, so the only evidence we have of what occurred in the hearing is the niece’s evidence and the reasons for decision.

16 Even if we accept that the Guardianship Tribunal rushed the hearing, that does not, in itself, constitute a breach of procedural fairness. Similarly, even if we accept that the niece asked to be able to speak for five minutes, and that that request was refused, that does not necessarily amount to a breach of procedural fairness. Without the transcript it is not possible to determine whether the Guardianship Tribunal’s haste or its refusal to give the niece an opportunity to speak on a single occasion means that the niece was denied an adequate opportunity to present her case.

Did the Guardianship Tribunal deny the niece procedural fairness by contacting a witness and obtaining evidence from her after the hearing had finished?

17 The Guardianship Tribunal’s reasons for decision state that:

The following people were contacted by the Tribunal during the course of the hearing and gave evidence by telephone:

Ms Justine O’Neill, Acting Senior Guardian, Office of the Public Guardian

18 When the niece received the reasons for decision she wrote to the Guardianship Tribunal saying, among other things, that the Guardianship Tribunal did not contact Ms O’Neill during the hearing. The niece told the Appeal Panel that she believed the Guardianship Tribunal must have obtained Ms O’Neill’s evidence by phone after the hearing. On 27 February 2006 Marion Brown, the Deputy President of the GT, responded to the niece’s letter saying that:
I am advised that the Reasons for Decision are incorrect in referring to Ms Justine O’Neill participating in the hearing. I am advised the Tribunal spoke with Ms O’Neill after the hearing to advise her of the Tribunal’s decision.
19 This explanation satisfies us that rather than contacting Ms O’Neill after the hearing to obtain evidence, the Guardianship Tribunal contacted her to tell her the outcome of the hearing. It was an oversight on the Presiding Member’s part, to write in the reasons for decision that the Guardianship Tribunal contacted Ms Justine O’Neill during the course of the hearing and that she gave evidence by telephone. We also note that, according to the niece, the Tribunal did contact another relative of hers by phone during the hearing and that that fact is not recorded in the Tribunal’s reasons for decision. In the interests of ensuring that the parties as well as the Appeal Panel are not misled about what happened in the hearing, it is obviously important to accurately record what took place. However, oversights of this kind do not amount to a denial of procedural fairness.

Did the Guardianship Tribunal deny the niece procedural fairness by not giving her an adequate opportunity to respond to material that was before the Guardianship Tribunal?

20 There were several documents before the Guardianship Tribunal which the niece said contained material adverse to her. The first was a report from officers from the Office of the Public Guardian dated 30 September 2005. That report stated that:

The Public Guardian is not aware of anyone within the family who would be capable of making impartial and non-biased decisions in relation to the functions of accommodation, access and services.
21 The second document that the niece drew to our attention was a document dated 1 July 2005 prepared by another officer from the Office of the Public Guardian. The document includes the following passage at p 6:
Information had also been provided to the Public Guardian which suggested that [the niece] and [a relative of the niece] may have sought to exploit [VT] financially, and in the time leading up to the access decision, it was reported by her Power of Attorney’s (sic) that a substantial sum of money had been moved from [VT’s] existing bank account to a new account during one of days (sic) [the niece] had taken [VT] on an outing, with some $2000 yet to be accounted for. Additionally it was noted that repeated attempts had been made by [the niece] to have [VT’s] ... property removed from the market and to change the locks on [VT’s] ... property.
22 The passage continues in a similar vein. The final document which the niece identified as containing adverse material is a statement from two of her relatives which concluded with the following words:

I (name deleted) say that I am 68 years of age and had never met [the niece] until last month. We both think that money considerations are behind all this.
23 The niece said that she had not received these documents, nor any of the other documents that the Guardianship Tribunal had before it, either prior to or during the hearing. She also said that the substance of any adverse material in those documents was not put to her. In particular, the niece said that the Guardianship Tribunal did not put to her that she would not be capable of making impartial decisions about where VT should live, that she had financially exploited VT or that she had tried to change the locks on VT’s property. Although we do not have the transcript, we accept that evidence. Ms North representing VT, said that the Guardianship Tribunal had sent her copy of Dr Aung’s report as well as other documents. Ms Cho representing the Guardianship Tribunal, explained that there was no policy or practice about who is provided with documents prior to or during the hearing. According to Ms Cho, it is a matter for the Investigating Officer and the Guardianship Tribunal to determine that matter on a case-by-case basis.

24 The final question is whether there were any exceptional circumstances which mean that the Guardianship Tribunal did not deny the niece procedural fairness. We are not aware of any such exceptional circumstances. There was no question of confidentiality in relation to the adverse material. Even if there was a confidentiality issue, for example in relation to the identity of the author of certain documents, the decision-maker should convey the substance of the information contained in the document (if not the identity of the author) 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].) It follows from our reasoning that failing to communicate the substance of the adverse material to the niece and failing to give her a reasonable opportunity to respond to it amounts to a denial of procedural fairness.

25 In addition, the niece submitted that she was not given an adequate opportunity to respond to the medical evidence. She had provided the Guardianship Tribunal with a report from a general practitioner, Dr Ferreira, dated 17 January 2005. That report concluded, on the basis of a Mini Mental State Examination (MMSE), that VT had no significant cognitive impairment. The Guardianship Tribunal also had a copy of a report from Dr Saw Aung, a senior staff specialist physician. He wrote that he did not have any doubt that VT has dementia. That opinion was based on his findings on examination and the reports of others. He concluded by saying that VT, “is cognitively significantly quite impaired and has no insight and no mental capacity to judge and make her own decisions. She is physically also not well enough to live alone at home.” The Guardianship Tribunal preferred the evidence of Dr Aung to that of Dr Ferreira because he is a specialist and the report was more recent and more detailed than Dr Ferreira’s report.

26 The niece was not aware of the report of Dr Aung prior to the hearing nor was she given a copy of the report or told the substance of it during the hearing. She had no opportunity to question him on the content of the report because he was not called as a witness. In those circumstances, the Guardianship has denied the niece procedural fairness.

What are the appropriate orders?

27 Section 118C(1) of the ADT Act provides the Appeal Panel hearing an external appeal may make “such orders as it thinks appropriate in the light of its decision.” Under s 118C(2), the orders the Tribunal may make include:

(a) an order affirming or setting aside the decision the subject of the external appeal,

(b) an order remitting the matter to be heard and decided again by the person or body that made the decision, either with or without the hearing of further evidence, in accordance with the directions of the Appeal Panel,

(c) an order made in substitution for the decision the subject of the external appeal.

28 Given our conclusion that the Guardianship Tribunal has denied the niece procedural fairness, the appropriate order is to set aside the Guardianship Tribunal’s decision of 12 December 2005 as varied on 10 March 2006. The niece did not apply for leave to appeal on grounds other than a question of law, so there is no need to consider whether or not to give leave for such an appeal to proceed. The only appropriate order in those circumstances is to remit the matter to be heard and decided again by the Guardianship Tribunal with the hearing of further evidence. The effect of setting aside the Guardianship Tribunal’s decision and remitting the matter to it is that VT will have no guardian to make decisions for her. That may be a problem since there is evidence that she lacks capacity to make her own decisions. While that evidence may or may not be accepted by the Guardianship Tribunal, it is necessary in order to protect VT’s interests, that the Appeal Panel’s orders not come into effect until the Guardianship Tribunal has made a new decision. Under s 118(3) of the ADT Act , “A decision of the Appeal Panel in relation to an external appeal takes effect on the date on which it is given or such later date as may be specified in the decision.” Accordingly, we specify that these orders take effect on 2 August 2006 which is 8 weeks from the date of these reasons.

Orders

1. The decision of the Guardianship Tribunal in relation to VT made on 12 December 2005, as varied by its decision on 10 March 2006, is set aside.

2. The matter is remitted to the Guardianship Tribunal to be heard and decided again with the hearing of further evidence.

3. These orders come into effect on 2 August 2006 which is 8 weeks from the date of these reasons.