W v Public Guardian

[2007] NSWADTAP 49

Appeal Panel - External

CITATION:	W v Public Guardian and anor [2007] NSWADTAP 49
PARTIES:	APPELLANT W FIRST RESPONDENT Public Guardian SECOND RESPONDENT & DECISION MAKER Guardianship Tribunal
FILE NUMBER:	078004
HEARING DATES:	8 August 2007
SUBMISSIONS CLOSED:	8 August 2007
DATE OF DECISION:	8 August 2007
BEFORE:	Britton A - Deputy President; Millar J - Judicial Member; Wunsch A - Non Judical Member
CATCHWORDS:	Guardianship order - review
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	C/19440 Matter No.: 2006/973
DATE OF DECISION UNDER APPEAL:	03/01/2007
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Guardianship Act 1987
CASES CITED:	Hess v Public Guardian & anors [2005] NSWADTAP 43 JT and Anor v Protective Commissioner & Ors [2004] NSWADTAP 13 KA v Public Guardian & Ors [2004] NSWADTAP 25 KV v Protective & Ors; KW & Ors v KV & Ors (No.2) [2004] NSWADTAP 48 Lloyd v Veterinary Surgeons Investigating Committee (2005) 64 NSWLR 245 QJ v Public Guardian & Ors [2005] NSWADTAP 45 Tarjali-Diab v Director-General, Department of Commerce (EOD) [2006] NSWADTAP 41 VP v Public Guardian and ors [2006] NSWADTAP 30
REPRESENTATION:	APPELLANT In person FIRST RESPONDENT No appearance SECOND RESPONDENT E Cho, Legal Officer
ORDERS:	Appeal dismissed

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 The appellant, who we will refer to in these reasons by the pseudonym, ‘W’, is in his late sixties and resides on the NSW central coast. He has been diagnosed as suffering from a chronic ‘schizo-affective’ disorder. He appeals against a decision of the Guardianship Tribunal, handed down on 1 March 2007 in which the Tribunal made what is referred to as a ‘limited guardianship order’. Of particular concern to W is the duration of the order-three years, which he considers to excessive.

2 This appeal was heard on 8 August 2007. W represented himself and attended by phone. Ms Cho appeared for the Guardianship Tribunal. No appearance was made for the Public Guardian, the first respondent in these proceedings.

3 An appeal may be made as of right, on any question of law, or by leave of the Appeal Panel on any other grounds: s 118B(1) of the Administrative Decisions Tribunal Act 1997 (ADT Act).

4 For the reasons set out below we have decided not to disturb the decision made by the Guardianship Tribunal. This means that the orders made by the Tribunal on 1 March 2007 remain in operation.

5 All references in these reasons to ‘the Tribunal’ are to the NSW Guardianship Tribunal.

Issues

6 Two issues fall to be determined: has an error of law been identified and, should leave be granted to extend this appeal to the merits.

Background

7 It is useful to summarise the history to the decision the subject of this appeal.

8 In February 2000 the Tribunal made guardianship orders for a period of six-months and appointed the Public Guardian to be W’s guardian. On the same day, a financial management order was made committing the management of W’s estate to the Protective Commissioner.

9 Six months later the Tribunal confirmed the earlier financial management order and reappointed the Public Guardian for a further two years.

10 A year later the Tribunal revoked the financial management order and in August 2002 determined that the guardianship order should lapse.

11 Subsequently, a social worker who apparently held concerns for W’s health and his ability to manage at home, applied to the Tribunal for the reinstatement of guardianship and financial management orders. In February 2006 that application was determined and a limited guardianship order made, appointing the Public Guardian for a period of 12 months to make decisions about W’s accommodation, health care and services. In addition, the Tribunal ordered, that W’s estate be committed to the management of the Protective Commissioner.

12 In March 2007, the Tribunal conducted a review of the guardianship order made in February 2006, as required by s 25(2)(b) of the Guardianship Act 1987. The Tribunal decided that W should remain under guardianship; that the Public Guardian should continue to act as his guardian and make decisions on his behalf in relation to accommodation and access to major services. The term of the order was three years. This is the decision that is the subject of W’s appeal.

An error of law?

13 W did not identify any error of law in his application to appeal the decision of the Guardianship Tribunal, filed with the ADT on 24 April 2007. However in the course of these appeal proceedings, W claimed he did not receive any documents prior to the Tribunal hearing in March 2007. He later conceded he was not sure what documents he did receive. Later still he told the Appeal Panel that the ‘document issue’ was not his real concern.

14 As noted W represented himself in these proceedings. He is a person whom the Tribunal found suffers from a disability, namely a mental illness and because of that is incapable of managing his person. In these circumstances, in our view, it would be inappropriate to ignore his complaint about the documents simply because he no longer presses the issue, apparently because he does not appreciate its possible significance to the appeal. It is notoriously difficult for a self-represented appellant to identify and articulate an error of law. It is especially difficult where the appellant suffers from a disability. While an Appeal Panel is not obliged to assist a self represented party ‘make out their case’ it nonetheless is obliged to act according to the substantial merits of the case without regard to technicalities or legal forms; to take such measures as are reasonably practicable to ensure parties understand the nature and legal implications of the assertions made in the proceedings; and to ensure that all parties have the fullest opportunity practicable to be heard (ss 73(3) and 73(4) of the Administrative Decisions Tribunal Act 1997 (ADT Act)).

15 The issue of whether the failure to provide an interested party with a document that was before the Guardianship Tribunal can amount to a denial of procedural fairness and, in turn, an error of law has been considered by Appeal Panels of the ADT. (See for example KA v Public Guardian & Ors [2004] NSWADTAP 25; KV v Protective & Ors; KW & Ors v KV & Ors (No.2) [2004] NSWADTAP 48; QJ v Public Guardian & Ors [2005] NSWADTAP 45; Hess v Public Guardian & anors [2005] NSWADTAP 43; VP v Public Guardian and ors [2006] NSWADTAP 30.) A review of those decisions reveals that the answer to this question depends very much on the circumstances of the case. Relevant factors include: the nature of the information contained in the document; whether the substance of any adverse material was disclosed; and, if so, whether the party claiming that their interests were adversely affected was given a reasonable opportunity to respond to any adverse material.

16 In its reason for decision the Tribunal listed seven documents it had considered in its deliberations (Reasons for Decision, p 2). These included reports prepared by officers of the Protective Commissioner, the Public Guardian and NSW Health.

17 There is some uncertainty whether W received those documents. His claim that he did not, is unsupported and on his own account, equivocal. In any event he does not assert that they contained material adverse to him or that he was denied an opportunity to respond to that material.

18 As we could not be satisfied that W did not receive the documents or, was not given an opportunity to respond to any adverse information contained in them, it is unnecessary for us to consider whether this aspect of the conduct of the proceedings constitutes a denial of procedural fairness.

19 For these reasons we are not satisfied that an error of law has been made out.

Extension to the merits

20 Section 118B(1) of the ADT Act provides that an appeal from a decision of the Guardianship Tribunal may be made as of right on any question of law or by leave of the Appeal Panel, on any other grounds. In JT and Anor v Protective Commissioner & Ors [2004] NSWADTAP 13, the Appeal Panel (differently constituted) discussed (at [32]) the factors to be taken into account in determining whether the discretion to grant leave should be exercised:

Having decided that the Tribunal made no error of law, the Appeal Panel's task is to determine whether leave should be given to appeal against the merits of the Tribunal's decision. The ADT Act does not contain any guidance on the relevant matters to be taken into account in determining whether leave should be granted. The Supreme Court has provided some guidance on this question in the cases of K v K [2000] NSWSC 1052; S v S [2001] NSWSC 146 and Re R [2000] NSWSC 886. Those cases interpreted s 67 of Guardianship Act 1987 which is the equivalent provision to s 67A in relation to appeals from Tribunal decisions to the Supreme Court. In K v K, Young J observed at [10] that "it has never been clearly decided what the circumstances are that should lead the Court to grant leave to appeal under s 67", but went on to make a number of observations on this point: see para [10]-[15). After considering the relationship between the Court and the Tribunal, Young J observed at [15]:
It would seem to me that s 67 of the Guardianship Act operates so that broad questions of administration and policy and the applicability of policy to individual cases, even if they are not questions of law, may well be subjects on which the Court will grant leave to appeal. On the other hand, it is very unlikely that the Court will grant leave to appeal when there is a problem with a fact finding exercise unless there are clear indications that the Tribunal has gone about that fact finding process in such an unorthodox manner or in a way which is likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.
21 Section 113(2) of the ADT Act concerns ‘internal appeals’ (that is appeals to the Appeal Panel against a first instance decision made by the ADT) and is in similar, but not identical, terms to s 118B(1). It provides that an appeal may be made on any question of law and with leave of the Panel, may extend to a review of the merits of the appealable decision.

22 The Court of Appeal in Lloyd v Veterinary Surgeons Investigating Committee (2005) 64 NSWLR 245, overturning previous Tribunal decisions to the contrary, held that in respect of an internal appeal it is not necessary that an error of law be demonstrated before consideration can be given to extending an appeal to the merits. Since Lloyd, a restrained approach has been taken to the exercise of that discretion. In declining to grant leave to extend to the merits, the Appeal Panel, in Tarjali-Diab v Director-General, Department of Commerce (EOD) [2006] NSWADTAP 41 O’Connor P presiding, said (at [33]):

The Tribunal [at first instance] had the advantage of hearing the evidence first hand. It would be the cause of considerable inconvenience and cost to the respondent if we were to allow the reopening of a case where it has been successful at first instance. Any reopening should not be lightly allowed. The appellant has not demonstrated any errors in the approach taken by the Tribunal, either in law, or in dealing with the evidence or in the fairness of its conduct of the matter.
23 W advanced the following reasons why the Panel ought revisit the decision the subject of this appeal:
The term of the order was excessive, a ‘life sentence’.

The order represented an unwarranted and unwanted restriction of his personal freedom.

He owned his own home and therefore did not need the Public Guardian to take responsibility for where he should reside.

24 W also raised a number of concerns about the management of his finances by the Protective Commissioner and the community treatment order to which he is subjected. The Appeal Panel’s power is limited to determining the appeal in respect of the guardianship orders made on 1 March 2007. Not surprisingly given the number of guardianship and financial management applications W has been the subject of in the last seven years, he did not fully appreciate that his appeal was confined to the March 2007 guardianship decision and did not extend to earlier decisions of the Tribunal.

25 W is understandably aggrieved that guardianship orders, which he thinks are unduly restrictive, are now in place for a not insignificant period of time. The Tribunal in making its decision was required to have regard to W’s views and we are satisfied that it did so. His views however were however but one of a number of matters the Tribunal was required to take into account. It was also required to have regard to what at times can be the competing principles enshrined in s 4 of the Guardianship Act 1987, which include giving paramount consideration to the welfare and interests of persons found to have disabilities and to protect them from neglect (s 4(g) of the Guardianship Act 1987).

26 Having carefully considered the Tribunal’s reasons for decision and the arguments advanced by W we have decided that this is not a case where the discretion to grant leave to appeal on grounds other than an error of law should be exercised. In reaching that decision we note the following: the Tribunal’s brief reasons clearly set out the basis of its decision; there is no material before us to indicate that the review was conducted in a cursory or perfunctory fashion or that any party was denied procedural fairness; and there nothing to indicate that there has been a material change in W’s health or the circumstances in his life.

27 For these reasons we have decided to dismiss this appeal.

Orders

Appeal dismissed.