ZH v Public Guardian & Ors

[2007] NSWADTAP 3

Appeal Panel - External

CITATION:	ZH v Public Guardian & Ors [2007] NSWADTAP 3
PARTIES:	APPELL.ANT ZH FIRST RESPONDENT Public Guardian SECOND RESPONDENT Protective Commissioner THIRD RESPONDENT ZI FOURTH RESPONDENT ZJ DECISION MAKER Guardianship Tribunal
FILE NUMBER:	068016
HEARING DATES:	21/12/2006
SUBMISSIONS CLOSED:	21 December 2006
EXTEMPORE DECISION DATE:	21 December 2006
DATE OF DECISION:	9 January 2007
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	Financial management order - making - Financial management order - review - Guardianship order - making - Guardianship order - review - Leave to appeal out of time - Standing
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	C29589
DATE OF DECISION UNDER APPEAL:	02/02/2006
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Guardianship Act 1987
CASES CITED:	R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13
REPRESENTATION:	APPELLANT In person FIRST, SECOND AND THIRD RESPONDENTS No appearance DECISION MAKER E Cho, legal officer
ORDERS:	1. The appeal against the decisions of the Guardianship Tribunal made on 26 October 2004 in relation to ZI is dismissed; 2. The appeal against the decisions of the Guardianship Tribunal made on 2 February 2006 in relation to ZI is dismissed

(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

Introduction

1 ZI is a 93 year old woman who lives in a nursing home. She has dementia and is blind. In 2004 her son, ZH, applied to the Guardianship Tribunal for a guardianship order and a financial management order in relation to his mother. He proposed that he be appointed as his mother’s guardian and financial manager because of a dispute between himself and his niece and nephew. Because of the conflict between the family members the Tribunal appointed the Public Guardian to be ZI’s guardian for 12 months. On the same day, the Guardianship Tribunal made an order for financial management in relation to ZI and ordered that the Protective Commissioner be appointed to manage her estate.

2 The matter was listed for hearing for a review of the guardianship order on 26 October 2005. ZI’s sister also applied for the financial management order to be revoked. Those matters were adjourned to 2 February 2006. On that date, the Guardianship Tribunal decided to let the guardianship order lapse. That decision was based on the fact that the Public Guardian was satisfied that the current medical treatment. ZI’s daughters proposed themselves as guardians. ZH did not support that outcome and said that he was not willing to participate in the hearing. The effect of the guardianship order lapsing is that consent to medical and dental treatment can be obtained from the “person responsible” as defined in s 33A of the Guardianship Act 1987. The Guardianship Tribunal confirmed the financial management order.

3 On 21 November ZI’s son, ZH, appealed to the Administrative Decisions Tribunal against the Guardianship Tribunal’s decisions of the 26 October 2004 and 2 February 2006. ZH says he has new evidence comprising a letter purportedly written by his mother in 1997 giving him power to look after his mother’s affairs.

Parties and representation

4 ZH appeared in person with the assistance of an interpreter. Unsurprisingly, given the state of her health, ZI did not appear. The Protective Commissioner and the Public Guardian indicated that they did not wish to present a case or make submissions. Ms Cho represented the Tribunal in a limited capacity consistent with the principles outlined by the High Court in R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 at 35. She made written submissions to the Tribunal.

Appeal Panel’s jurisdiction

5 The Appeal Panel's jurisdiction to hear external appeals comes from s 67A of the Guardianship Act 1987 and s 118A of the Administrative Decisions Tribunal Act 1997 (ADT Act). An external appeal may be made as of right on any question of law or by leave on any other ground: ADT Act, s 118B(1). Two preliminary issues arise: the standing of ZH to appeal against these decisions and, if he has standing, whether the appeal should be accepted even though it has been filed out of time. We deal first with the appeal against the 2004 decisions and then with the appeal against the 2006 decisions.

2004 decision

6 Because ZH was the applicant in relation to the orders made by Guardianship Tribunal in 2004, he has standing to appeal against those orders: Guardianship Act, s 67A(2) and s 3F, ADT Act, s 67(2A). The general rule is that an external appeal must be made within 28 days after the decision-maker provides the party with written reasons: ADT Act s 118B(2)(a). ZH filed the appeal on 11 November 2006, nearly two years after he was notified of the decision. The Tribunal has an unfettered discretion to extend time for the lodgement of an appeal: ADT Act, s118B(2)(a). This is a clear case where there is no utility in accepting the appeal against the 2004 decisions out of time because those decisions are no longer operative. The Guardianship Tribunal made new decisions in relation to guardianship and financial management in February 2006. Consequently we do not accept ZH’s appeal in relation to the 2004 decisions.

2006 decision

7 The review of the guardianship order in 2006 was an end of term review which the Guardianship Tribunal is obliged to conduct in accordance with s 25(2)(b) of the Guardianship Act. The parties to such a review are set out in s 3F(3):

(3) Each of the following persons is a party to proceedings consisting of a review by the Tribunal of a guardianship order made under this Act:
(a) the person, if any, who requested the review,

(b) the person the subject of the order,

(c) the spouse, if any, of the person the subject of the order, if the relationship between the person and the spouse is close and continuing,

(d) the person who has care of the person the subject of the order,

(e) the guardian appointed under the order,

(f) any person whom the Tribunal has joined as a party under section 57A.

8 ZH did not request the review nor was he joined as a party by the Tribunal under s 57A. In fact, despite being notified of the hearing, he did not attend and did not answer the phone when the Tribunal attempted to contact him. Because he was not a party to the proceedings (whether as provided by section 3F or otherwise), he is not entitled to appeal against the Guardianship Tribunal’s decision to let the order lapse: Guardianship Act , s 67A(2) and ADT Act , s 67(2A).

9 The review of the financial management order was made at the request of one of ZI’s sisters. The parties to such a review are set out in s 3F(7):

(a) the person, if any, who requested the review,

(b) the protected person to whom the relevant financial management order relates,

(c) the spouse, if any, of the protected person, if the relationship between the person and the spouse is close and continuing,

(d) the person, if any, who has care of the protected person,

(e) the person appointed as the manager of the estate concerned,

(f) the Protective Commissioner,

(g) any person whom the Tribunal has joined as a party under section 57A.

10 ZH did not request the review, nor does he fit within any of the other categories listed in s 3F(7). Because he was not a party to the proceedings (whether as provided by section 3F or otherwise), he is not entitled to appeal against the Guardianship Tribunal’s decision to confirm the financial management order: Guardianship Act , s 67A(2) and ADT Act , s 67(2A).

Conclusion

11 ZH’s appeal in relation to the 2004 decisions is nearly two years out of time and as those decisions have now been superseded by decisions made in 2006, there is no utility in extending the time for the lodging of the appeal. In relation to the 2006 decisions, ZH does not have standing to appeal against those decisions. Ms Cho advised that there are currently two matters concerning ZI pending before the Guardianship Tribunal, namely applications by ZH for a guardianship order and for a review of the financial management order. If ZH has new evidence which he says justifies a change to the current guardianship or financial management arrangements for his mother, then it is appropriate for him to put that material before the Guardianship Tribunal.

Orders

The appeal against the decisions of the Guardianship Tribunal made on 26 October 2004 in relation to ZI is dismissed.

The appeal against the decisions of the Guardianship Tribunal made on 2 February 2006 in relation to ZI is dismissed.