WL v NSW Trustee and Guardian

[2011] NSWADTAP 22

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	WL v NSW Trustee and Guardian (External) [2011] NSWADTAP 22
Hearing dates:	4 March 2010
Decision date:	06 May 2011
Jurisdiction:	Appeal Panel - External
Before:	Magistrate N Hennessy, Deputy President S Leal, Judicial Member Dr B Field, Non-Judicial Member
Decision:	The appeal is dismissed
Catchwords:	APPEAL - two decisions of the Guardianship Tribunal, one out of time; whether appeal should be accepted out of time - whether Guardianship Tribunal erred when deciding not to revoke a financial management order - identification of questions of law - procedural fairness - relevant and irrelevant considerations - making findings of fact with no probative evidence - irrational reasoning - meaning of 'principles clause in s 4 of Guardianship Act - whether appeal should proceed against merits of decision
Legislation Cited:	Guardianship Act 1987 Administrative Decisions Tribunal Act 1997 Children (Detention Centres) Act 1987
Cases Cited:	Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Lupevo Pty Ltd t/a Ampol Nabiac v Bree [2002] NSWADTAP 9 R v P (2001) 53 NSWLR 664 OM v MN [2008] NSWSC 36 PY v RJS (1982) 2 NSWLR 700 Re R [2000] NSWSC 886 Re GHI (2005) 221 ALR 589 FA v Protective Commissioner and Ors [2008] NSWADTAP 36 H v H (unreported, Supreme Court of NSW, Young J, 20 March 2000) N v N (unreported, Supreme Court of NSW, Hodgson J, 13 March 1997) Ballantyne v Workcover Authority (NSW) [2007] NSWCA 239 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 McD v McD [1983] 3 NSWLR 81 K v K [2001] NSWSC 1052 S v S [2001] NSWSC 146 ID, PF and DV v Director General, Department of Juvenile Justice and Anor [2008] NSWSC 966 Re C (TH) and the Protected Estates Act [I999] NSWSC 456 Azzopardi v Tasman UEB Industries Ltd (I985) 4 NSWLR 149 Ormwave Pty Ltd v Smith [2007] NSWCA 210 Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (unreported, 90640127, 14 August 1996) Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Category:	Principal judgment
Parties:	WL (Appellant) NSW Trustee and Guardian (First Respondent) IV Knight (Counsel Assisting) Guardianship Tribunal (Decision Maker)
Representation:	Legal Aid NSW (Appellant) IV Knight, Crown Solicitor's Office (counsel assisting)
File Number(s):	108010
Decision under appeal	Citation: Unreported Date of Decision: 2010-09-09 00:00:00 Before: Guardianship Tribunal File Number(s): C/42674

REASONS

Introduction

1. Mr WL has appealed against two decisions of the Guardianship Tribunal. The first decision, which was made on 19 August 2009, was to make a financial management order in relation to Mr WL's estate and to appoint the NSW Trustee and Guardian as his financial manager. Following an application by Mr WL to revoke that order, the Guardianship Tribunal made a second decision refusing to revoke the order but varying it by giving Mr WL $20,000 of his money and thus excluding that sum from the financial management order.

1. Mr WL has a right to appeal on "any question of law" but must obtain the Tribunal's permission ('leave') before appealing on other grounds including the merits of the Guardianship Tribunal's decisions: Administrative Decisions Tribunal Act 1997 ( ADT Act ), s 118B(1). The Appeal Panel has jurisdiction to hear both appeals but before hearing the appeal against the first decision, we must decide whether to accept it in circumstances where it was lodged about 18 months out of time: ADT Act , s 118B(2).

1. Because there was no 'contradictor' (the first respondent, the NSW Trustee and Guardian, did not make any submissions on the appeal) the Tribunal appointed the Crown Solicitor, Mr IV Knight, as "counsel assisting". Ms Davidson took on that role. The Guardianship Tribunal indicated that it wished to continue to have an active role in the appeal, but only to the extent of being available to provide comment in relation to its practices and procedures.

Issues and Appeal Panel's conclusions

1. The issues to be determined and the Appeal Panel's conclusions on those issues can be summarised as follows:

(1)   Should the Appeal Panel give permission for Mr WL to lodge an appeal against the first decision out of time? Answer: No.

(2)   Do any of the seven grounds of appeal against the second decision identify a question of law? Answer: Yes.

(3)   Did the Guardianship Tribunal make an error of law in relation to any of those questions of law? Answer: No.

(4)   In relation to the grounds of appeal that do not identify questions of law or where there is no error of law, should leave be granted for the appeal to extend to those grounds? Answer: No.

1. These conclusions mean that the appropriate order is to dismiss the appeal.

Background

1. In 2009 the Supreme Court awarded Mr WL compensation of approximately $230,000 in relation to a claim of sexual abuse against a religious organisation. Following that award his solicitor, Ms Brewer, applied to the Guardianship Tribunal for a financial management order in relation to Mr WL's estate. The Tribunal made an order and committed his estate to the NSW Trustee and Guardian. Mr WL's Centrelink benefits were excluded from management. Mr WL was not separately represented by a lawyer in those proceedings and his new solicitors (Legal Aid NSW) allege that Ms Brewer had a conflict of interest. They also allege that Mr WL was denied procedural fairness in the first hearing because he was not aware of the content of medical evidence on which the Tribunal relied.

1. Mr WL did not appeal against that decision within the 28 days allowed. In May 2010 Mr WL applied for the financial management order to be revoked on the ground that he was capable of managing his own financial affairs: Guardianship Act , s 25R.

1. On receiving an application for revocation or variation, the Tribunal may review the order: s 25N(4). Following such a review, the Tribunal may vary, revoke or confirm the order: s 25P(1). The Guardianship Tribunal refused to revoke the order.

Should the Appeal Panel accept the out of time appeal?

Background

1. An external appeal "must be made within 28 days after the decision- maker provides . . . the party with written reasons for the appealable decision or within such further time as the Appeal Panel may allow": ADT Act , s 118B(2). At the hearing before the Appeal Panel Ms Kluss, representing Mr WL, applied to amend the Notice of Appeal to include an appeal against the Guardianship Tribunal's first decision. Ms Kluss' written submissions had been made on the basis that Mr WL was appealing against both the first and second decisions but no Amended Notice of Appeal had been filed.

1. The Appeal Panel allowed Ms Kluss to notionally amend the Notice of Appeal to include the first decision. If the date of the hearing (4 March 2010) is taken to be the date the amended Notice of Appeal was filed, the appeal is about 18 months out of time.

Principles relevant to considering application to appeal out of time

1. The general rule when applying s 118B(2) of the ADT Act , is that proceedings commenced outside the prescribed period will not be entertained: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. An extension of time will be granted, however, if it is proper to do so taking into account matters including:

(1)   the length of the delay;

(2)   the adequacy of the information conveyed to the Appellant at the time the decision was notified to him, both as to the reasons for the decision and as to the Appellant's entitlement to appeal;

(3)   the reasons for the failure including whether the Appellant rested on his rights or took action to make the decision-maker aware that the decision was being contested;

(4)   any prejudice to the Appellant of not granting leave;

(5)   any possible prejudice to the Respondent of granting leave; and

(6)   the merits of the appeal: Lupevo Pty Ltd t/a Ampol Nabiac v Bree [2002] NSWADTAP 9.

Consideration of relevant factors

1. In this case the delay was approximately 18 months. We understand that the Guardianship Tribunal's usual practice is to advise parties of their appeal rights when the reasons for decision are provided. Mr WL did not say that he had not been advised of those rights at the time. We note that he did not have separate legal representation at that stage.

1. As no reasons for late lodgement were put forward in Ms Kluss' written submissions, we invited her to tell us the reasons at the hearing. She said that Mr WL was not legally represented at the first hearing and his new legal representatives did not appreciate the significance of the first decision until they were preparing the submissions in relation to the appeal against the second decision. We note however, that Mr WL has been represented by a solicitor from Legal Aid NSW since at least early May 2010 and there is no reference to an appeal against the first decision in the Notice of Appeal filed 26 October 2010.

1. The second reason Ms Kluss gave for the late lodgement was that Mr WL was suffering from anxiety and depression at the time. We accept that that was the case.

1. The prejudice to Mr WL if leave is not granted is that he loses the chance to argue that the financial management order should never have been made. That prejudice is alleviated somewhat by the fact that the Guardianship Tribunal has the power to revoke the order at any time.

1. As there is no active respondent, there is no prejudice to either of their interests.

1. Finally, without actually determining the appeal, we need to consider the strength of the grounds of appeal. We are less likely to give leave to appeal out of time if the grounds of appeal are weak. The three grounds of appeal relied on were that the Tribunal denied Mr WL procedural fairness; that his solicitor, Ms Brewer, was acting on a conflicted basis which fatally contaminated the proceedings; and that the Tribunal was misled by evidence that was unreliable.

1. The procedural fairness issue was that Mr WL was denied the opportunity to challenge a report of Dr Klug dated 30 July 2009 (the second report). Without the transcript of the first hearing or the reasons for decision, we do not know whether Mr WL disagreed with the opinions expressed in that report. He told the Guardianship Tribunal at the second hearing on 9 September 2010 that, "I didn't really put up a fight, to be honest." If Mr WL did not dispute that he lacked capacity to manage his affairs, it is highly unlikely that the Tribunal would have breached procedural fairness by not providing him with a copy of the report and granting him an adjournment to obtain further evidence.

1. The second ground of appeal is that Mr WL's interests were not "clearly and unequivocally advocated and considered" because Ms Brewer was conflicted. Presumably the question of law is whether the Tribunal erred by permitting an application to be brought by Mr WL's solicitor.

1. While there is no absolute rule against solicitors applying for a financial management order in relation to their clients, according to Hodgson JA (Mason P and Ipp AJA agreeing), it is "extremely undesirable because it involves the solicitor in a conflict between the duty to do what the solicitor considers best for the client and the duty to act in accordance with the client's instructions . . .": R v P (2001) 53 NSWLR 664 at 683. However, in that case, the court concluded that as there was no absolute rule precluding solicitors bringing such an action, the result at first instance should not be disturbed. The same result is likely in this case.

1. The final ground of appeal against the Tribunal's first decision was that the Guardianship Tribunal was misled by unreliable evidence. Mr WL contended that Dr Klug's second report was unreliable because it was prepared using information supplied by Ms Brewer and without a further consultation with Mr WL.

1. 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: Guardianship Act , s. 55(1). Receiving and considering Dr Klug's second report is unlikely to amount to an error of law because that evidence had some probative value despite the fact that Dr Klug had not consulted with Mr WL immediately prior to preparing the report.

Conclusion

1. Mr WL's appeal was lodged 18 months late. Despite being told that he had a right to appeal, he did not do so. It was not until the date of hearing of an appeal against another decision that Mr WL's solicitors sought leave to amend the Notice of Appeal to include the first decision. While there is some prejudice to Mr WL in refusing leave to appeal out of time and legitimate reasons for not having appealed earlier, any prejudice is largely overcome by the fact the Tribunal may revoke a financial management order at any time. Furthermore, the relative lack of merit of the appeal means that leave to file it out of time should be refused.

Appeal against second decision

1. The second decision, which was appealed within time, was to refuse to revoke the financial management order but to vary it by adding a term excluding $20,000 of the money held by the NSW Trustee and Guardian.

1. As the applicant for revocation, Mr WL bore the onus of proof before the Guardianship Tribunal: OM v MN [2008] NSWSC 36. The Tribunal may only revoke a financial management order if:

(a) the Tribunal is satisfied that the protected person is capable of managing his or her affairs, or

(b) the Tribunal considers that it is in the best interests of the protected person that the order be revoked (even though the Tribunal is not satisfied that the protected person is capable of managing his or her affairs): s 25P(2).

1. This provision is at the heart of these proceedings. We will refer to the two elements of this provision in paragraphs (a) and (b) as the "capability test" and the "best interests" test. If the Guardianship Tribunal is satisfied that either of those tests has been met, it may revoke the financial management order.

1. The capability test was explained by Powell J in PY v RJS (1982) 2 NSWLR 700 at 702:

It is my view that a person is not shown to be incapable of managing his or her own affairs unless, at the least, it appears:

(a) that he or she appears incapable of dealing, in a reasonably competent fashion, with the ordinary routine affairs of man; and

(b) that, by reason of that lack of competence there is shown to be a real risk that either:

(i) he or she may be disadvantaged in the conduct of such affairs; or

(ii) that such moneys or property which he or she may possess may be dissipated or lost; it is not sufficient, in my view, merely to demonstrate that the person lacks the high level of ability needed to deal with complicated transactions or that he or she does not deal with even simple or routine transactions in the most efficient manner . (Emphasis added and footnotes deleted).

1. Although this formulation of the capability test has been consistently applied, we note that the portion in italics is a qualification to the test expressed in paragraph (a) whereas the other points under (i) and (ii) of paragraph (b) focus on the consequences of a lack of capability so are also relevant to the best interests test.

1. The best interests test focuses on what is in the interests of the person, not what is in the interests of his family, his friends or his estate; Re R [2000] NSWSC 886 per Young J at [37]. Best interests includes the "welfare, health and well-being of the person in a wider sense than is suggested by protection from neglect, abuse or exploitation": Re R [2000] NSWSC 886 at [35] per Young J.

1. When exercising functions under the Guardianship Act , the Guardianship Tribunal must observe the principles set out in s 4 of that Act.

Grounds of appeal on 'questions of law'

1. The seven grounds of appeal on "questions of law" in relation to the second decision were that:

(1)   The Tribunal found that the appellant was 'not capable' at the time of hearing without any relevant probative evidence.

(2)   The Tribunal placed undue weight on irrelevant material in its assessment of 'capability'.

(3)   The Tribunal erroneously found that the appellant's condition 'would more probably than not ... within the foreseeable future' be operating to impede his capability, incorrectly applying the test in McD v McD (1983) 3 NSWLR 81.

(4) Even if he had been properly found to be incapable, the Tribunal did not properly assess the 'best interests' of the appellant pursuant to s 25P(2)(b) of the Guardianship Act .

(5)   The Tribunal applied the incorrect test to its assessment of the appellant's capability by focussing on a "real risk of financial disadvantage and loss of his capital' thus applying a subjective rather than an objective test.

(6)   The Tribunal did not properly consider the impact of the failings (and the denial of procedural fairness) in the hearing of the 19 August 2009.

(7) The Tribunal failed to consider s 4(b) and (f) of the Guardianship Act .

Summary of grounds 1, 2, 3 and 5

1. We have dealt with grounds 1, 2, 3 and 5 together because the submissions made in relation to these grounds of appeal overlap and identify more than one kind of alleged error. We have divided the alleged errors identified in those grounds of appeal into the following categories:

(1)   The Tribunal applied a subjective instead of an objective test when considering the capability test.

(2)   The Tribunal took into account certain irrelevant considerations when deciding whether Mr WL was capable of managing his affairs and whether it was in his best interests that the order be revoked, namely:

(a)   his prognosis;

(b)   any risk that the capital sum would be dissipated or lost because:

(i)   he had difficulty managing the lump sum in the past.

(ii)   he had expressed interest in starting a business when he had not been employed for several years;

(c)   his grievance against the solicitor acting for him in the compensation litigation; and

(d)   the fact that Mr WL had not "followed through" in complying with the NSW Trustee and Guardian when he wished to purchase a property in Bundaberg.

(3)   The Tribunal made findings of fact where there was no evidence or no probative evidence to support that finding. Those findings were that:

(a)   Mr WL lacked capacity;

(b)   Mr WL has not followed the advice of Dr Klug or Dr Teoh that he have ongoing psychiatric treatment; and

(c)   it was more probable than not . . . that Mr WL would have a depressive episode in the foreseeable future.

(4)   The Tribunal's reasoning was illogical, because it failed to find that Mr WL's capacity to manage his day-to-day affairs was a positive indicator in relation to his capacity to manage the capital sum.

Subjective application of the capability test

1. Mr WL's submission that the Guardianship Tribunal erred by applying the incorrect test to its assessment of his capability turns substantially on the contention that the Tribunal adopted the subjective, Victorian approach to capability. The Guardianship Tribunal focussed on whether there was a "real risk of financial disadvantage and loss of his capital."

1. The risk of financial loss, by reason of lack of competence, is specifically referred to as part of the second limb of the well-established test in PY , namely that: "by reason of that lack of competence there is shown to be a real risk that either: ... or (ii) that such moneys or property which he or she may possess may be dissipated or lost": [I982] 2 NSWLR 700 at 702. While it is accepted that the test in PY is not a substitute for the statutory test in s 25P (see Re GHI (2005) 221 ALR 589 at 592), that test has been referred to by the Appeal Panel as "the classic statement of the meaning of the term 'incapable of managing his affairs'": FA v Protective Commissioner and Ors [2008] NSWADTAP 36 and Campbell J has described it as one which a Supreme Court judge of first instance is bound to follow: Re GHI at 591.

1. The Guardianship Tribunal's consideration of the risk of loss of the appellant's capital was consistent with a correct application of the test in PY , and a correct application of the statutory test.

1. As the appellant's submissions note, the second limb of the test in PY specifically acknowledges that it is "not sufficient ... merely to demonstrate that the person lacks the high level of ability needed to deal with complicated transactions": [I982] 2 NSWLR 700 at 702. However, the Supreme Court has repeatedly concluded that the complexity of a person's affairs is not irrelevant to the application of the PY test: Re GHl (2005) 221 ALR 589 at 592; N v N (unreported, Supreme Court of NSW, Hodgson J, 13 March 1997) at 4. In Re GHI , Campbell J explained why a specific enquiry into the existence of skills that there is a "practical likelihood of the person in question needing to exercise in the course of running his or her affairs" is relevant, as follows:

Once the particular plaintiff shows that he or she wants to engage in a particular type of activity, there is occasion for the court to enquire into whether the person has the capacity to deal with the type of routine affairs of man which are likely to arise in that type of activity. This analysis ... does not involve a possibility of the court concluding that someone with a large amount of property to administer, and who lacks an ability to deal with it by reason if its size and complexity, is held to be incapable of managing his or her affairs - the vice which Powell J in M and the Protected Estates Act 1983 (para [6] above) saw as involved in what his Honour took to be the Victorian approach to whether a person was incapable. Rather, it looks only at those types of skills which fall within the range of those needed to deal with the ordinary routine affairs of man, enquires whether the plaintiff has satisfied the Court that he or she has those skills, and looks at whether any lack of such skills is one which causes the risk of the person being disadvantaged in the conduct of his or her affairs, or dissipating or losing money or property. That is a precise and literal application of Powell J's

test.

1. The Tribunal's consideration of Mr WL's ability to manage his capital is consistent with the case law referred to above, indicating that the "ordinary affairs of man" includes more than everyday household budgeting but extends to "[generating] income and look[ing] after capital": H v H (unreported, Supreme Court of NSW, Young J, 20 March 2000); OM v MN [2008] NSWSC 36 at [8].

1. The appellant had indicated an interest in running his own business, even though it was not clear from his evidence that he wished to do so immediately. Applying Campbell J's reasoning in Re GHI , extracted above, it was therefore consistent with a correct application of the PY test, for the Guardianship Tribunal to consider whether he had the capacity to deal with the type of routine affairs of man that are likely to arise in the course of managing a business. The Guardianship Tribunal did not err in this regard.

Irrelevant considerations

1. When exercising discretion under s 25P in relation to both the capability test and the best interests test, the Guardianship Tribunal must not take into account irrelevant considerations. Irrelevant considerations are factors which are "extraneous to the proper exercise of the power, so that to take them into account will . . . reveal legal error": Ballantyne v Workcover Authority (NSW) [2007] NSWCA 239 at [113]. However, a consideration will only be irrelevant "if the statute in question, properly construed, forbids its consideration": Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 (emphasis added).

1. Section 25P does not, either expressly or impliedly, forbid the consideration of any of the factors identified by Mr WL, nor are any of those factors extraneous to the proper exercise of power under that provision. It follows that the Guardianship Tribunal did not err in law by considering them. Nevertheless we will discuss each factor in turn.

Prognosis

1. Mr WL effectively submitted that his choice not to have ongoing psychiatric treatment, despite professional recommendations to the contrary, amounted to taking into account an irrelevant consideration. We agree that the Tribunal did take that matter into account describing it as a "major concern" in relation to the capability test. The Tribunal's comments regarding Mr WL's decision not to have ongoing treatment were made in the context of his prognosis in the foreseeable future.

1. There is nothing in the Guardianship Act to suggest that consideration of such matters is extraneous to the proper exercise of the power in s. 25P(2). Furthermore, the Tribunal concluded that there was no requirement that a finding of incapability be grounded in a cognitive, psychiatric or other disability. In the Tribunal's words, "[T]he issue should be incapability irrespective of its cause." Even so, the ongoing nature of a person's psychiatric condition is not irrelevant to the Tribunal's assessment of capability.

1. That conclusion is supported by two Supreme Court decisions. When considering a comparable statutory requirement that a person be "incapable of managing [her] affairs", in McD v McD [I983] 3 NSWLR 81 at 86, Powell J thought that it was not just reasonable, but necessary, to consider the foreseeable future:

Although such incapacity must be shown to exist at the time when the application comes on for hearing, it seems to me that, in determining whether a person is, or is not, capable of managing her affairs, one is not restricted to a consideration of matters as they stand on the day of the hearing. On the contrary, so it seems to me, one is both entitled and required to consider what the position will be in the reasonably foreseeable future.

1. A similar point was made by Campbell J in Re GHI (a protected person) (2005) 221 ALR 589 at 592, where his Honour said:

Deciding whether a person is capable of managing affairs is in part an exercise in prediction - of deciding whether the skills and abilities which the person now has are such that they are likely to be able to deal satisfactorily with the tasks that will arise in the future concerning the management of their affairs.

1. Mr WL's prognosis is not an irrelevant consideration in relation to the capability test or the best interests test.

Risk of financial loss

1. Mr WL relied on the following passage from Re C (TH) and the Protected Estates Act [I999] NSWSC 456 per Young J at [10] for the proposition that the Tribunal's focus on the possibility of financial loss if the order was revoked, is not an irrelevant consideration:

. . . it is not a question of whether the Protective Commissioner or somebody else could manage the affairs of the applicant better, or that if the applicant was left on her own the likelihood would be that her funds would soon be dissipated. One cannot be too paternalistic. People have the right to manage their affairs, unless they fall below the level that is prescribed by the Act.

1. In our view this passage is not inconsistent with Powell J's formulation of the capability test set out in PY v RJS. In Re C , Young J noted that the level prescribed by the Act had been interpreted in cases such as PY v RJS and that he had taken the same view in previous cases: at [11]. Subsequent Supreme Court decisions have not regarded Re C as inconsistent with PY , but rather as an example of the application of PY: Re GHI (2005) 221 ALR 589 at 591. In OM v MN [2008] NSWSC 36 at 181 Windeyer J noted that the principle in PY "has been followed in all the cases in this court dealing with the question of revocation".

1. The second limb of the test for capability in PY squarely addresses the possibility of loss, by considering whether, by reason of lack of competence in the ordinary affairs of man, there is a "real risk" that either the person may be disadvantaged in the conduct of those affairs, or that "such moneys or property which he or she may possess may be dissipated or lost".

1. The risk that money will be dissipated or lost is not a consideration that the Guardianship Tribunal is forbidden from taking into account when applying the capability test. The risk of financial loss and the utility of preserving the Mr WL's compensation fund was also a relevant consideration in relation to the best interests test. There is nothing in the Guardianship Act to support the suggestion that, having considered the risk of financial loss as part of an assessment of capability pursuant to s. 25P(2)(a), the Tribunal is forbidden from considering that risk in its application to a person's best interests, when applying s. 25P(2)(b).

1. Two other considerations which Ms Kluss, representing Mr WL, submitted were irrelevant were Mr WL's aspiration to buy a business and his difficulty managing the lump sum in the past. Both those matters go to the broader question of whether it is likely that his capital will be dissipated or lost if the financial management order is revoked. In Re GHI [2005] NSWSC 581 at 616, Campbell J emphasised the need for a protected person to be able to identify when financial advice was needed. Campbell J also highlighted the need for such a person to be willing to seek and to follow that advice. In that case, the plaintiff was interested in running his own business but Campbell J was not satisfied that he would take the advice necessary to avoid unwise decisions. Such considerations were regarded as relevant to both the capability test and the best interests test. They are also relevant in this case. No error of law is disclosed.

Dispute with solicitor

1. When determining whether Mr WL satisfied the capability test, the Guardianship Tribunal took into account his 'grievance that he had been persuaded to settle his compensation claim for too low an amount'. The evidence in relation to that matter was summarised by the Tribunal in the following terms:

He objected to the $4950 legal fees that have been paid by the Trustee. They were to David Beck and Co, who had done nothing for him. He had been referred to them to obtain a second opinion and they had convinced him to accept the proposed settlement. He feels that he in fact had a bigger claim. He had not signed a costs agreement. If he had control of his finances he would pursue his grievance about the legal costs.

1. The Tribunal commented that this grievance appeared to be based "purely on his view of what would have been fair rather than, for example, on legal advice." Ms Kluss submitted that since the legal proceedings for compensation were concluded long ago, any grievance Mr WL may have does not reflect adversely on his capability. She said that many people have grievances against their lawyers and that the existence of such a grievance is not relevant to capability.

1. We agree with Ms Kluss that the fact that Mr WL is aggrieved by the amount of the fee paid to David Beck and Co and the fact that he would pursue that grievance if he had control of his finances, does not necessarily reflect adversely on his capability. Nevertheless in order to constitute an error of law, consideration of those matters must be forbidden in the sense that their inclusion would invalidate the decision: Ballantyne v Workcover Authority (NSW) [2007] NSWCA 239 at [113]. We do not regard this consideration as falling within that category.

Not following through with details relating to purchase of property

1. Mr WL gave evidence to the Guardianship Tribunal in relation to his dealings with the Public Trustee when he expressed interest in buying a property in Bundaberg. The Tribunal asked him why he had not obtained the information requested by the Public Trustee so that he would be ready next time he saw a property. Mr WL replied that 'it was a nightmare' dealing with the Public Trustee. The Tribunal concluded that it was concerned that Mr WL "did not follow through this issue with the Trustee with the aim of satisfying their requirements and avoiding delay if he found another property. Also, he did not appear to have considered the job market in Bundaberg."

1. Ms Kluss highlighted several matters including the fact that Mr WL had secured accommodation through Housing NSW and had successfully applied for legal aid as evidence that he was capable despite not 'following through' with the Public Trustee when he wished to purchase a property in Bundaberg.

1. We are not satisfied the Mr WL"s dealings with the Public Trustee are a consideration that the Guardianship Tribunal is forbidden from taking into account. Furthermore, giving weight to some evidence in preference to other evidence is not an error of law.

No probative evidence

1. It is an error of law to make a finding of fact when there is "no evidence" or, at least, "no probative evidence", to support that finding: Azzopardi v Tasman UEB Industries Ltd (I985) 4 NSWLR 149 at I55-156; Ormwave Pty Ltd v Smith [2007] NSWCA 210; 5 DDCR 180 at [14] per Beazley JA, with whom Santow and Ipp JJA agreed.

1. The weight to be given to the evidence is a question of fact. As Mason J explained in Minister for Aboriginal Affairs v Peko- Wallsend Ltd (I986) 162 CLR 24 at 40, "it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power." To the extent Mr WL's appeal goes to the Guardianship Tribunal's weighting of competing considerations for the purposes of its assessment of his capability or best interests, that does not constitute an error of law. Section 25P(2) imposes no restrictions, as a matter of law, on the weight that should be attributed to the various matters relevant to those assessments.

No evidence of incapacity

1. Ms Kluss submitted that there was no probative evidence of Mr WL's incapacity because Dr Klug's reports and the evidence given at the first Guardianship Tribunal hearing were out of date. The only current evidence was from Dr Teoh who said that, "Mr WL's mental state at this stage does not cause impairment for his capacity to manage the fund." Dr Teoh added that Mr WL "remains gullible and impulsive, and does have the risk of losing his money through poor investment."

1. Contrary to Ms Kluss' assertion, there was probative evidence of Mr WL's incapacity. That evidence included:

(1)   the entirety of Dr Teoh's report,

(2)   Mr WL's extensive oral evidence about matters including his proposed move to Bundaberg and his interest in starting a business; and

(3)   the report prepared by social worker Jenny Thompson.

1. As there was some probative evidence before the Tribunal which supported its finding about capability, it has not made an error of law.

Likelihood of a depressive episode in the foreseeable future

1. The error of law alleged in relation to this ground is that there was no evidence to support the Guardianship Tribunal's finding that Mr WL's condition would "more probably than not ... within the foreseeable future" be operating to impede his capability. The Tribunal's reasons do not, in terms, include such a finding, though it clearly did consider Mr WL's reasonably foreseeable future condition as part of its assessment of capability. Ms Kluss submitted that the test in McD v McD [I983] 3 NSWLR 81 requires that, before the position in the reasonably foreseeable future may be taken into consideration, a prediction must be made that a chronic illness, presently in remission, will "more probably than not be repeated within the foreseeable future". Mr WL further submits that Dr Teoh did not make such a prediction or describe his illness in those terms.

1. The Guardianship Tribunal did not fall into error, because there was some evidence before the Tribunal which supports the view that, as in McD , Mr WL had a history of chronic illness that would, despite his current state, more probably than not be repeated in the foreseeable future. The report of Dr Teoh stated that "[It is likely that Mr WL will continue to experience unstable mood and chronic depression. He has a psychiatric impairment." Dr Teoh also referred to the "chronic nature of his condition, which is likely to be an issue for him over the next few years."

1. To the extent that Mr WL alleges that the Guardianship Tribunal should have taken a different view on the merits of his prognosis, that is not a question of law.

Illogical reasoning

1. Mr WL criticised the Guardianship Tribunal's reasoning in that it failed to regard his (accepted) capability to manage his everyday affairs as a positive indicator when assessing his capability with respect to managing his capital. This is said to amount to an erroneous inference as to the influence of one thing on another, rather than being treated as a failure to consider a relevant consideration. Illogical reasoning is not an error of law as long as there is some basis for a finding or inference. As Mason CJ put it in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356:

So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.

1. In any event, the Tribunal clearly did take into consideration Mr WL's ability to deal with "week to week budgeting of his pension". That capability to manage one's own affairs for the purposes of the statutory test for revocation does not automatically flow from managing day-today affairs is apparent from the following definition of "affairs" for the purposes of the test in PY supplied by Young J in H v H (unreported, Supreme Court of NSW,

However, when looking at that test, the ordinary affairs of mankind do not just mean being able to go to the bank and draw out housekeeping money. Most people's affairs are more complicated than that, and the ordinary affairs of mankind involve at least planning for the future, working out how one will feed oneself and one's family, and how one is going to generate income and look after capital. Accordingly, whilst one does not have to be a person who is capable of managing complex financial affairs, one has to go beyond just managing household bills."

1. The same point was made by Windeyer J in the passage from OM v MN [2008] NSWSC 36 at 181:

The ordinary affairs of man does not just mean going down to the local shop and buying ordinary household goods, it means being able to manage ordinary household funds and ordinary investments and it does involve the ability not only to understand that advice ought to be obtained for the investment of a large amount of money but to be able to properly consider that advice.

1. For the reasons set out above, no error of law is disclosed in grounds 1, 2, 3 or 5.

Ground 6: Failure to consider failings of previous hearing

1. The appellant complains that the deficiencies of the first hearing were not acknowledged or commented on in the Guardianship Tribunal's reasons for decision of 29 September 2010, leading to a "deep-seated flaw" in the Tribunal's decision. Whatever may have been the impact of the alleged flaws in the hearing of 19 August 2009 at which the financial management order was made, it cannot constitute an error of law for the Tribunal to fail to address these issues in subsequent, separate, proceedings for revocation of that order. The Guardianship Act provides a mechanism for appealing to the Administrative Decisions Tribunal against a decision to make a financial management order pursuant to s. 25E: see s. 67A(l)(e). Mr WL did not avail himself of that mechanism, but instead, as he was entitled to do, made a separate application for revocation of the order. No error of law is disclosed.

Ground 7: Failure to consider s. 4(b) and (f) of the Guardianship Act 1987

1. Mr WL submitted that the Guardianship Tribunal failed to properly have regard to s. 4(b) and (f) of the Guardianship Act in reaching its decision. Section 4 is headed 'General principles' and sets out eight 'principles' which must be observed when exercising functions under the Act:

4 General principles

It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles:

(a) the welfare and interests of such persons should be given paramount consideration,

(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. (Emphasis added.)

1. Section 4 is more than an objects clause. Objects clauses articulate the intended purpose of the legislation and regard may be had to them to resolve uncertainty or ambiguity when interpreting and applying the remainder of the legislation: Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (unreported, 90640127, 14 August 1996). The 'principles clause' in the Guardianship Act not only articulates the intended objects of the Act, it requires any person exercising functions under that Act, to observe those principles.

1. A somewhat similar provision exists in the Children (Detention Centres) Act 1987 ( CDC Act ). In particular, as with s 4(a) of the Guardianship Act , s 4(2)(a) of that Act, requires that:

(2) In the administration of this Act:

(a) the welfare and interests of persons on remand or subject to control shall be given paramount consideration

1. Section 4 of the CDC Act has other similarities with s 4 of the Guardianship Act . One of the objects of the former provision is to "ensure that persons on remand or subject to control take their places in the community as soon as possible as persons who will observe the law": s 4(1)(a). That provision expresses similar aspirations to those expressed in s 4(b), (c) and (f) of the Guardianship Act .

1. In the context of the review of a decision to transfer juvenile detainees under the CDC Act, the Supreme Court (Johnson J) held that the extent of the consideration to be given to an objects clause depends on the adverse consequences of the relevant decision under the Act on the applicant and the statutory scheme: ID, PF and DV v Director General, Department of Juvenile Justice and Anor [2008] NSWSC 966. In that case, the potential effect of a prison transfer on the defendants was serious enough that the 'decision maker was bound to have regard to the objects in s 4 CDC Act , and the practical matters, concerning each Plaintiff which arose for consideration once proper regard was had to the objects clause': at [262]. In such circumstances, the objects must either be taken into account expressly or the decision must demonstrate that those objects were in fact taken into account: at [263].

1. Similarly, in relation to the Guardianship Act , when making a decision about whether to revoke a financial management order, or to exercise any other function under the Guardianship Act , a decision maker is bound to observe any relevant principle in s 4. The decision maker may demonstrate that he or she has observed those principles either by referring to them expressly or by writing reasons for decision which demonstrate that all relevant principles have been observed.

1. However, the principles are not expressed in absolute terms. Phrases such as "as little as possible" and "as far as possible" make it clear that observing a principle does not mean that, where a discretion exists, a decision maker must make a particular decision. For example, observing the principle in s 4(b) does not necessarily mean that every person must be given complete freedom in relation to their personal, domestic and financial affairs.

1. In this case, the Tribunal referred expressly to the principles in s 4 saying that:

In its decision-making, the Tribunal also needs to be guided by the principles in section 4 of the Guardianship Act which include an emphasis on maximum freedom for the individual, taking account of the person's views, protecting the person from exploitation and ultimately regarding the interests of the person as paramount. As well as providing general guidance to it, the Tribunal saw section 4 as governing any decision it made about varying the financial management order.

1. Mr WL gave evidence and made submissions about his frustration when dealing with the NSW Trustee and Guardian. He also objected to the fees he was charged. The Guardianship Tribunal referred to this evidence in its reasons for decision. The desirability of giving Mr WL "complete autonomy" in relation to the use of some of his money was one of the reasons for varying the financial management order to exclude $20,000. It is plain from the Tribunal's express reference to s 4 and from the decision as a whole, that the Tribunal observed the principles in s 4. No error of law is disclosed.

Leave to appeal against the merits of the decision?

1. In relation to the grounds of appeal that do not identify a question of law or where there is no error of law, should leave be granted for the appeal to extend to those grounds?

1. 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 [2001] NSWSC 1052; S v S [2001] NSWSC 146 and Re R [2000] NSWSC 886.

1. Those cases interpret s 67(1)(b) of Guardianship Act which is the equivalent provision to s 118B(1)(b) of the ADT Act 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 [I 5]:

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."

1. Mr WL plainly disagrees with the Guardianship Tribunal's findings and its decision in relation to his capability to manage his affairs and whether revocation would be in his best interests. His disagreement with those conclusions of fact and with the decision do not justify extending the appeal to merits of the Tribunal's decision. There is nothing on the face of any of the grounds of appeal which raises broad questions of administration or policy or the applicability of policy to individual cases. Nor are there clear indications that the Guardianship Tribunal went about the fact finding process in applying the capability test or the best interests test in an unorthodox manner or in a way which is likely to produce an unfair result.

Orders

1. The appeal is dismissed.

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Decision last updated: 06 June 2011