X v Guardianship and Administration Board
[2020] TASSC 11
•28 April 2020
[2020] TASSC 11
COURT: SUPREME COURT OF TASMANIA
CITATION: X v Guardianship and Administration Board [2020] TASSC 11
PARTIES: X, F
X, P
v
GUARDIANSHIP AND ADMINISTRATION BOARD
ATTORNEY-GENERAL
FILE NO: 2243/2019
DELIVERED ON: 28 April 2020
DELIVERED AT: Hobart
HEARING DATE: On the Papers
JUDGMENT OF: Estcourt J
CATCHWORDS:
Administrative Law – Administrative tribunals – Statutory appeals from administrative authorities to courts – Appeal against decision of Guardianship and Administration Board – Whether grounds of appeal raise a question of law for determination – Whether leave to appeal on any other ground should be granted – Whether Board's determination was beyond the realms of reasonableness or was clearly mistaken – Particular Circumstances – Appellants residing in family home owned by represented person rent free – Board found conflict of interest preventing first appellant being appointed administrator of the represented person – Finding of conflict of interest open to the Board.
Guardianship and Administration Act 1995 (Tas) s 6, s 54, s 76.
R v District Court; Ex Parte White (1966) 116 CLR 644; Mahony v Industrial Registrar of New South Wales (1986) 8 NSWLR 1; Waterford v The Commonwealth (1987) 163 CLR 54; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; Repatriation Commission v O'Brien (1995) 155 CLR 422; Attorney General for the State of New South Wales v X [2000] NSWCA 199, 49 NSWLR 653; Protective Security Pty Ltd v Bedelph [2004] TASSC 128, 13 Tas R 354; Tanase v Acme Engineering (Tas) Pty Ltd [2006] TASSC 100; XYZ v State Trustees Ltd [2006] VSC 444, 25 VAR 402; Hussain v Minister for Foreign Affairs [2008] FCAFC 128, 169 FCR 241; Wesiak v D & R Constructions (Aust) Pty Ltd [2016] NSWCA 353, referred to.
Slinko v Guardianship and Administration Tribunal [2006] QSC 39, 2 Qd R 279, followed.
Aust Dig Administrative Law [1147].
REPRESENTATION:
Counsel:
Appellants: D Zeeman
Respondents: P Turner SC
Solicitors:
Appellants: Butler McIntyre & Butler
Respondents: Director of Public Prosecutions
Judgment Number: [2020] TASSC 11
Number of paragraphs: 43
Serial No 11/2020
File No 2243/2019
X v GUARDIANSHIP AND ADMINISTRATION BOARD
REASONS FOR JUDGMENT ESTCOURT J
28 April 2020
The appeal
In this proceeding I have for a decision "on the papers", (by consent of the parties, as a consequence of the restrictions arising from the 2020 Coronavirus pandemic), an appeal from a determination of the Guardianship and Administration Board of Tasmania (the Board). By that determination, made on 16 July 2019, pursuant to the Guardianship and Administration Act 1995 (the Act), it was ordered that the Public Trustee (Tas) (the Public Trustee), be appointed as administrator of the estate of [X] until 15 July 2022.
Section 76(1) of the Act provides a right of appeal to this Court from a determination of the Board. Section 76(2) provides that an appeal may be brought as of right "on a question of law" and "only with the leave of the Court" on any other question.
The amended notice of appeal dated 30 August 2019 moves the Court, on six grounds, "to determine an appeal from, and to the extent necessary, to determine an application for leave to appeal" against the Board's determination.
The appellants' counsel, Mr D Zeeman, submits in his written submissions that, "in essence the grounds allege" that the Board failed to give proper effect to the principles set out in s 6 of the Act, which it was bound to apply.
A question of law?
Section 6 of the Act provides:
"6 Principles to be observed
A function or power conferred, or duty imposed, by this Act is to be performed so that–
(a)the means which is the least restrictive of a person's freedom of decision and action as is possible in the circumstances is adopted; and
(b)the best interests of a person with a disability or in respect of whom an application is made under this Act are promoted; and
(c)the wishes of a person with a disability or in respect of whom an application is made under this Act are, if possible, carried into effect."
Ground (a) of the notice of appeal, which is said by counsel for the appellants, to "broadly allege" the question of law said to arise, asserts:
"The determination was inconsistent with the principles as set out in section 6 of the Guardianship and Administration Act 1995 ('the Act') in that the Orders were neither the least restrictive of the Represented Person's freedom of decision and action as was possible in the circumstances, they did not promote his the (sic) best interests, (sic) they did not carry into effect his wishes."
Grounds (b) to (f) of the notice are said by counsel for the appellants, to each provide more specific examples "of the manner in which the Board failed to give proper effect to the principles of s 6, "whilst also standing alone as grounds in (sic) which the Board erred in law by its misapplication of s 54 of the Act".
Section 54 of the Act provides:
"54 Persons eligible as administrators
(1) The Board may appoint as an administrator of the estate of a proposed represented person –
(a) The Public Trustee; or
(b) the Public Guardian; or
(c) a trustee company within the meaning of the Trustee Companies Act 1953 ; or
(d) any other person, including the guardian of the proposed represented person, who consents to act as administrator if the Board is satisfied that –
(i)the person will act in the best interests of the proposed represented person; and
(ii)the person is not in a position where his or her interests conflict or may conflict with the interests of the proposed represented person; and
(iii)the person is a suitable person to act as the administrator of the estate of the proposed represented person; and
(iv)the person has sufficient expertise to administer the estate.
(2) In determining whether a person is suitable to act as the administrator of the estate of a proposed represented person, the Board must take into account –
(a) the wishes of the proposed represented person, so far as they can be ascertained; and
(b) the compatibility of the person proposed as administrator with the proposed represented person and with his or her guardian, if any."
Grounds (b) to (f) of the notice of appeal assert:
"(b)The Board erred (sic) failed to enquire, or properly enquire or take into account, or properly take into account the wishes of the Represented Person and/or the compatibility of the Public Trustee to act as the Represented Person's Administrator as required under s 54(2) of the Act in that:
(i)No enquiries or no proper enquiries were made as to what were the wishes of the Represented Person;
(ii)No enquiries or no proper enquiries were made as to the compatibility of the Public Trustee to act as administrator with the Represented Person;
(iii)There was no evidence or proper evidence before the Board as to the wishes of Represented Person or as to the compatibility of the Public Trustee with the Represented Person; and
(iv)No enquiries or any proper enquiries were made by the Board pursuant to section 88 of the Act as to the existence and content (sic) any will of the Represented Person.
(c)The Board found that there was a conflict of interest in the First Named Appellant preventing her to (sic) be appointed the administrator of the Represented Person on the basis that the First Named Appellant and the Second Named Appellant were residing in the home owned by the Represented Person rent free:
(i)Without taking into account the full facts and circumstances of the family of the Represented Person and the circumstance in which the Appellants were living in the home of the Represented Person;
(ii)Without taking into account that the home of the Represented Person was his family home and that of the Appellants;
(iii)Without taking into account the wishes of the Represented Person as to whether he wanted the Appellants to live in the family home;
(iv)Without taking any or any proper steps to ascertain the wishes of the Represented Person in that regard;
(v)When there was no evidence, or no sufficient evidence before the Board that the First named Appellant had not acted or would not act in the best interests of the Represented Person;
(vi) When the Board had not assessed the likelihood that the home of the Represented Person would need to be sold (sic)would be in the best interests of the Represented Person;
(vii) When the Board had not assessed whether the renting by the Appellants of the Represented Persons home would be financially beneficial to him.
(d)The Board failed to ascertain whether the appointment of the Public Trustee as the administrator of the Represented Person would present the Public Trustee with a conflict of interest, or a conflict of interest greater than that which the Board identified in the potential appointment of the First Appellant as the administrator of the Represented Person and/ or failing to identify that the appointment of the Public Trustee as the administrator of the Represented Person would lead to a conflict of interest on the part of the Public Trustee in that:
(i)The Board did not obtain details of any funds held by the Represented Person available to pay any fees to be rendered by the Public Trustee;
(ii)The Board assumed, without having any evidence, or any proper evidence before it as to whether or not (sic) the Represented Person would be liable to the payment of an accommodation bond in respect of any residential care required by him;
(iii)The Board appointed the Public Trustee as the administrator of the Represented Person in circumstances where the family home of the Represented Person will have to be sold to pay the fees of the Public Trustee, which step would not have been required if the Board had appointed the First Appellant as the administrator of the Represented Person.
(e)The Board failed to consider, or properly consider whether the appointment of the Public Trustee as administrator of the Represented Person instead of the First Named Appellant was the least restrictive option available to the Represented Person in compliance with s 51(4) of the Act.
(f)The Board appointed the Public Trustee as administrator of the Represented Person instead of the First Named Appellant and in so doing it did not implement the least restrictive option available to the Represented Person."
In his written submissions on behalf of the Attorney-General, Mr Turner SC, submits, that no relevant question of law is identified by the notice of appeal, and that insofar as it is contended that there is an error other than on a question of law, the complaints are essentially factual. That is to say, that the Board ought not to have made the determination that it did. That, he submits, is impermissibly inviting the Court to re-hear the application and to substitute its own determination for that of the Board.
For the reasons that follow, I am persuaded that no question of law is raised by the appeal and that leave to appeal on any other question should not be granted.
Appeal "on a question of law"
The term "on a question of law", when used in legislation as the precondition of a right of appeal, is wider than the term "error of law" when similarly deployed, see Attorney General for the State of New South Wales v X [2000] NSWCA 199, 49 NSWLR 653 at 677. And the term "on a question of law" is, in turn, when so used, narrower than the term "involves a question of law", see Hussain v Minister for Foreign Affairs [2008] FCAFC 128, 169 FCR 241 at 254.
It is not enough, however, to show that the Board's reasons might suggest the "possibility" that it proceeded on a wrong view of the law. This Court is not entitled to interfere with the Board's determination unless it is satisfied that there was "a vitiating error of law", see XYZ v State Trustees Ltd [2006] VSC 444, 25 VAR 402 at [31].
Counsel for the Attorney-General, Mr Turner SC, comprehensively sets out in his written submissions the circumstances which will satisfy the precondition of demonstrating that an appeal is "on a question of law" or which will amount to "an error of law". From those submissions I have distilled the following principles.
There is no question of law arising where a board or tribunal makes a wrong finding of fact, that is to say, a finding of fact with which the Court disagrees, see Waterford v The Commonwealth (1987) 163 CLR 54, [77]; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason CJ at 356.
There is no error of law even if the process of reasoning by which a fact is derived is "demonstrably unsound", see Bond at 356 per Mason CJ, citing R. v District Court; Ex parte White (1966) 116 CLR 644, at 654.
The making of a finding of fact in the absence of any evidence at all is an error of law, see Bond at 355. A finding of fact, where there is evidence to support the finding, is not an error of law, and the drawing of inferences from the findings of primary facts, provided there is evidence to support the drawing of those inferences, cannot give rise to an error of law, see Tanase v Acme Engineering (Tas) Pty Ltd [2006] TASSC 100 at [25].
The question of whether there is any evidence of a particular fact is a question of law, see Bond at 355.
An error of law may arise if the primary facts found are necessarily within or outside a statutory description and a contrary decision has been made. That is to say, where only one conclusion is open concerning whether the case does or does not come within a statutory expression, see Mahony v Industrial Registrar of New South Wales (1986) 8 NSWLR 1, per Hope JA at 2-3 and Samuels JA at 5, and Protective Security Pty Ltd v Bedelph [2004] TASSC 128, 13 Tas R 354, [22]-[28] per Crawford J, with whom Blow J, as their Honours then were, agreed.
An ultimate finding of fact will be vitiated by error of law if the finding was not reasonably open on the whole of the evidence, (the word "reasonably" meaning "rationally" and not, "something on which minds may reasonably differ"), see Wesiak v D & R Constructions (Aust) Pty Ltd [2016] NSWCA 353 at [73], per McDougal JA with whom Beasley P and Simpson AJA agreed.
A failure by an administrative decision-maker to give adequate reasons for making the decision, does not amount to an error of law unless the failure is such as to warrant an inference that the decision-maker failed in some respect to exercise its powers according to law, see Repatriation Commission v O'Brien (1995) 155 CLR 422 at 445-446, per Brennan J.
Leave to appeal
A not dissimilar provision to s 76(2)(b) of the Act was considered by de Jersey CJ in Slinko v Guardianship and Administration Tribunal [2006] QSC 39, 2 Qd.R. 279. In that case his Honour refused leave, saying at [10]-[11] that "the legislature did not intend there be re-hearings in the Supreme Court, on the facts, for the asking". He said that it was necessary for an applicant for leave to demonstrate "a seriously arguable case of error in a finding central, and not merely peripheral, to the determination, such that it would be unjust to allow the finding to stand". His Honour continued at [12]-[16]:
"[12] It goes without saying that it would be plainly insufficient for an applicant simply to contend that a differently constituted tribunal could have taken a different view. The suggested error must rest in the adoption of a factual position beyond the realms of reasonableness, or one which is clearly mistaken.
[13] Ordinarily for a grant of leave, the seriously arguable obtuseness or wrongheadedness of the factual finding will be plainly and readily apparent: it should not be necessary to embark on a comprehensive re-examination of the evidence to identify the error. It would subvert the legislative intent if, factual error being suggested, the Court were to embark on a comprehensive re-examination of the facts of the case to exclude the possibility.
[14] Accordingly, an applicant for leave to appeal on the facts should with precision identify the suggested error. As necessary, the Court will assess the significance of the finding to the overall conclusion, and if that is substantial, refer to supporting (and any compellingly contrary) evidence.
[15] It should usually be possible to reach a view where the error is seriously arguable in a relatively broad way, without the need for an extensive journey into the proceedings before the Tribunal.
[16] On the reasonable assumption that the Tribunal carefully and conscientiously goes about it task, it follows that a grant of leave to appeal on the facts should be a rarity."
The grounds of appeal
In relation to the appellants' combined notice of appeal and application for leave to appeal I propose to follow a similar course to that adopted by de Jersey CJ. That is to say, to first consider whether any of the alleged errors of law have been established and then, if not, to consider whether any of the matters raised on behalf of the appellants, considered in "a relatively broad way" and without a "comprehensive re-examination of the facts", might justify a grant of leave.
As already noted, ground (a) of the notice of appeal asserts that the Board's determination was inconsistent with the principles set out in s 6 of the Act in that the orders made were not the least restrictive of [Xs'] freedom of decision and action as was possible in the circumstances, did not promote his best interests, and did not carry into effect his wishes.
In his written submissions, counsel for the appellants argues that, while the Board referred to the relevant sections of the Act in its statement of reasons, the reference to them was "superficial", and the reasons reveal that the Board did not give proper or due consideration to how the principles set out in s 6 of the Act should be applied in the particular circumstances of the case. I should add that, in my view, it cannot be said, on any count, that the Board's reasons were less than adequate.
The Board determined that [X] needed an administrator. That finding is not challenged. The choice for the Board was then between the Public Trustee and the first appellant. The Board found that the first appellant was in a position of conflict because she lived in [Xs'] house rent free and the house may need to be sold.The Board considered factors in favour of appointing the first appellant as the administrator, but decided against doing so, stating at [25] of its reasons:
"In favour of appointment of the Public Trustee is the clear potential for conflict between the interests of [Ms X] and [X]. [Xs'] major asset is the residence. [Ms X] enjoys rent free accommodation in her father's home and has an interest in maintaining that situation. She is also apparently close to her sister and would have an interest in her sister also maintaining that situation, or at least a natural desire to assist her sister in this regard. There is clearly potential for conflict between those interests and the best interests of [X] in respect to the management of the residence when he moves into aged care. The Administrator of [Xs'] estate will necessarily need to consider whether [Xs'] best interests lie with maintaining the current arrangement or with utilising the property to generate income for his benefit or potentially to sell it to fund alternative accommodation. It is not apparent to the Board that these steps would be taken or that [Ms X] would give priority to her interests over those of her father, however such decisions need to be made objectively and impartially in [Xs'] best interests. [Ms Xs'] assertion that because she would act in her father's interests there would be no conflict misses the point. The conflict exists, or will exist and must be taken into account. In the Board's view it outweighs the factors in favour of appointing [Ms X] such that the Board considers it appropriate to appoint the Public Trustee."
Counsel for the appellants argues that the reason given for the appointment of the Public Trustee did not arise through "any positive examination of the compatibility or suitability of the Public Trustee" in the particular circumstances, nor from any "positive examination" of how [Xs'] best interests might be promoted in appointing the Public Trustee. He argues that there was no positive examination of how [Xs'] wishes and freedom of decision might be impacted by the appointment of the Public Trustee.
However, I am inclined to accept the submission of counsel for the Attorney General, that the assertion that the Board's determination was inconsistent with the principles set out in s 6 of the Act does not involve or raise any question of law. He submits that it is crucial to identify the question of law that is the jurisdictional basis for the appeal, and that the appellants' assertion that the determination should have been something other than it was, does not do that. He argues that the Board's ultimate findings were ones which were supported by the evidence, however, he submits that, whilst failing to take into account the mandatory requirements set out in s 6 would be an error of law, the Board expressly took them into account. That is clearly correct. It is clear from the Board's statement of reasons at [9] that it was patently alert to the s 6 principles and its obligation to apply them. There is nothing in the Tribunal's reasons that suggests to my mind that it paid mere lip service to those principles.
I also accept the submission of counsel for the Attorney-General on ground (a), and the other grounds, to the extent that they are interlinked, that the Board determined that [X] needed an administrator; that the choice for the Board was then between the Public Trustee and the first appellant; and that the Board found that the first appellant was in a position of conflict. I accept Mr Turner's submission that the Board's finding to that effect was an unassailable finding of fact, and that once it was made it was inevitable that the least restrictive option which promoted [Xs'] best interests was the appointment of the Public Trustee.
Counsel for the appellants argues that the Board incorrectly stated that there was no evidence before it as to the wishes of the represented person, and failed to consider and address the evidence it did have with respect to his wishes. However, as already noted, there is no error of law in making a wrong finding of fact.
I should add however, that it does not follow that I accept that the Board made any wrong finding of fact. What it said in its statement of reasons at [20], was confined to the question of [Xs'] wishes as to the appointment of, and the choice of, an administrator. It is entirely correct to say there was no evidence as to that as [X] was drifting in and out of sleep during the hearing, and when directly addressed by the Board, was unable to respond. There is no reason to suspect that the Board ignored the other evidence it had as to [Xs'] wishes, including his desire to keep his home "in the family".
Counsel for the appellants also argues that if the evidence before the Board was not sufficient to ascertain [Xs'] wishes, it should have made "proper enquiries" to ascertain those wishes, including opening his will as it was entitled to do under s 88 of the Act. Once again, these complaints do not raise a question of law. As already noted, there is no error of law even if the process of reasoning by which a fact is derived is demonstrably unsound.
As to ground (a), there is no question of law arising in any of the ways that I have set out above (at [15]-[21]), as available ways in which an error of law may be identified. As to the appellants' complaints about flawed fact finding, they simply invite an impermissible re-hearing by this Court of the application for the appointment of an administrator determined by the Board.
Ground (b) of the notice of appeal asserts that the Board erred in that it failed to enquire as to or take into account, [Xs'] wishes and/or the "compatibility" of the Public Trustee to act as his administrator. As to this ground, I accept the submission of counsel for the Attorney-General that the ground misapprehends the proper construction of s 54(2) of the Act.
It is clear to my mind, both from the express terms of s 54(2) and by implication from the use of the word "compatibility" in s 54(2)(b), that the proper construction of s 54(1)(d) is that its provisions do not apply to the Public Trustee. They apply only to "any other person" as referred to in s 54(1)(d). That is to say, that s 54(2) applies only to real persons and not to corporate trustees or the Public Guardian. It can be seen from the Board's statement of reasons at [8] that it so construed the section.
The gravamen of ground (c) of the notice of appeal is that the Board found that there was a conflict of interest on the part of the first appellant, without making proper inquiries and without taking into account the full facts and circumstances of the family and the circumstance in which the appellants were living in their father's home. It also asserts that there was no evidence, or no sufficient evidence, before the Board that the first named appellant had not acted or would not act in her father's best interests.
On a holistic reading of the Board's statement of reasons, the complaints addressed by this ground do not appear to me to be made out. However, the finding of fact by the Board, as to the existence of a conflict of interest on the part of the first appellant, cannot, in any event, raise a question of law, unless there was no evidence of that fact and no evidence which would justify the drawing of an inference to that effect. There very clearly was such evidence, from the first appellant, and the finding of a conflict of interest was completely open to the Board. To my mind, the Board's approach to the question is unimpeachable and the relevant finding cannot be vitiated by the fact that the Public Trustee charges fees or the possibility that it might, in the future, need to sell [Xs'] house. It cannot be said that the Board erred by failing "to make an obvious inquiry about a critical fact, the existence of which is easily ascertained" (Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 [25]).
Ground (d) of the notice of appeal asserts that the Board failed to ascertain whether the appointment of the Public Trustee would present it with a conflict of interest, or a conflict of interest greater than that which the Board identified in the first appellant, in circumstances in which the appellants' family home would have to be sold to pay the Public Trustee's fees. It also asserts that the Board did not have any evidence, "or any proper evidence" before it as to [Xs'] financial needs or whether or not he would be liable for the payment of an accommodation bond in respect of any residential aged care required by him.
This ground raises no question of law. As I have already noted the provisions of s 54(1)(d) do not apply to the Public Trustee. They apply only to "any other person" as referred to in that subsection. If I am wrong about that, it remains that the errors alleged in the ground are nothing more than complaints that the Board failed to make enquiries or obtain evidence about peripheral matters, not critical to its ultimate determination.
Grounds (e) and (f) of the notice of appeal are repetitive of ground (a). They assert that the Board failed to consider, or properly consider, whether the appointment of the Public Trustee as administrator, as opposed to the first appellant, was the least restrictive option available to the Board as required by s 51(4) of the Act. I have already dealt with that complaint. It is a complaint that the Public Trustee was appointed as the administrator rather than the first appellant. No question of law is demonstrated.
Disposition
None of the grounds of appeal raise a question of law for determination. In particular it cannot be said that the Board's ultimate finding was not reasonably, in the sense of rationally, open on the whole of the evidence viewed through the prism of the s 6 principles. It follows that the essential condition precedent to the right of appeal given by s 76(2)(a) of the Act has not been met.
As to leave to appeal under s 76(2)(b), I am satisfied, following the approach of de Jersey CJ in Slinko v Guardianship and Administration Tribunal (above), that no "seriously arguable obtuseness or wrongheadedness" of the factual findings made by the Board "is plainly and readily apparent". The Board's determination cannot be said to be "beyond the realms of reasonableness, or one which is clearly mistaken". It is not enough that I might consider that I could or would have reached a different conclusion on the facts from that reached by the Board. I am wholly unable to say that it would be unjust to allow the determination to stand.
The appeal is dismissed and the application for leave to appeal is refused. Any application for costs may be made in writing by either party within 14 days from the date of these reasons.
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