Appeal Panel - External CITATION: ZH v Public Guardian & Ors [2007] NSWADTAP 69 APPELLANT ZH FIRST RESPONDENT Public Guardian, Office of the Public Guardian PARTIES: SECOND RESPONDENT Protective Commissioner, Office of the Protective Commissioner THIRD RESPONDENT ZI DECISION MAKER Guardianship Tribunal FILE NUMBER: 078009 HEARING DATES: 1 November 2007 SUBMISSIONS CLOSED: 1 November 2007 DATE OF DECISION: 21 November 2007 BEFORE: Hennessy N - Magistrate (Deputy President); Leal S - Judicial Member; Whaite A - Non Judicial Member CATCHWORDS: Financial management order - review - Guardianship order - review MATTER FOR DECISION: Principal Matter FILE NUMBER UNDER APPEAL: Guardianship Tribunal: C29589 Matter No: 2006/4026, 2006/5195 DATE OF DECISION UNDER APPEAL: 06/21/2007 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Guardianship Act 1987 Kioa v West (1985) 159 CLR 550 CASES CITED: Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 149 K v K [2000] NSWSC 1052 In person FIRST RESPONDENT No appearance SECOND RESPONDENT REPRESENTATION: No appearance THIRD RESPONDENT L Critchley, solcitior DECISION MAKER E Cho, solicitor ORDERS: 1. Leave to appeal against the merits of the Tribunal's decision is refused; 2. The Tribunal's orders are affirmed. 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 Introduction 1 ZI is a 94 year old woman who lives in a nursing home. She has dementia and is blind. She has no capacity to make decisions for herself. She has two sons and three daughters. She also had another son who committed suicide. In 2004, one of the sons, ZH, applied to the Guardianship Tribunal (the Tribunal) for a guardianship and a financial management order in relation to his mother. 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 Tribunal made an order for financial management in relation to ZI and ordered that the Protective Commissioner be appointed to manage her estate. When the guardianship order lapsed, the Tribunal did not re-appoint a guardian. ZH applied to the Tribunal again for a guardian to be appointed for his mother. On 21 June 2007, the Tribunal dismissed that application. At the same time, the Tribunal reviewed its 2004 order committing the management of ZI's estate to the Protective Commissioner and confirmed that order. ZH has appealed to the Appeal Panel against both those decisions. 2 ZI's main concern is that his brother who committed suicide, is buried in a burial plot which he says his mother paid for and was intended for her. He says that two of his brother's children organised for their father to be buried in that plot. Even though there is space for two bodies in the plot, ZI says that it is not culturally appropriate for his mother to be buried with his brother. Before committing suicide, his brother had been in prison in relation to the death of his wife. ZI is adamant that his niece and nephew should pay for a new burial plot for his mother or remove their father from the existing plot. ZI also says that he is entitled to $15,000 from his brother's estate. He says he lent that money to his mother in 1981 and that she gave it to his brother to meet various expenses he had at the time. His brother said that he would repay him, with interest, when he sold his house. ZI says that he has never been repaid. Parties and representation before Appeal Panel 3 ZH appeared in person with the assistance of an interpreter. Ms Critchley from the Aged Rights Service appeared for ZI. 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. Appeal Panel's jurisdiction 4 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). ZI appealed on questions of law and sought the Appeal Panel's leave to appeal on other grounds. Guardianship Tribunal's decision 5 Application for guardianship. Before making an application for guardianship the Tribunal must first be satisfied that the person is a "person in need of a guardian". That term is defined to mean "a person who, because of a disability, is totally or partially incapable of managing his or her person": Guardianship Act 1987, s 3. There was no dispute that ZI met this description. The second step in the process is for the Tribunal to decide whether to appoint a guardian. When exercising that discretion, the Tribunal must consider all the matters in s 14(2), namely: (a) the views (if any) of: (i) the person, and (ii) the person's spouse, if any, if the relationship between the person and the spouse is close and continuing, and (iii) the person, if any, who has care of the person, (b) the importance of preserving the person's existing family relationships, (c) the importance of preserving the person's particular cultural and linguistic environments, and (d) the practicability of services being provided to the person without the need for the making of such an order. 6 The Tribunal may also take any other relevant matter into consideration when deciding whether to appoint a guardian. In this case the Tribunal took into account ZH's evidence that it is his mother's wish that he be her sole decision maker. It also noted that staff at the nursing home support the appointment of a guardian because they would only have to consult with one person in relation to medical decisions. Despite support from the nursing home, the Tribunal found that all ZI's children were satisfied with the quality of the care their mother was receiving. The Tribunal also noted that the question of where ZI is to be buried is a matter for the executor of her will (ZH) and that the appointment of a guardian would not resolve that issue. In those circumstances, the Tribunal concluded that there was no need for a guardian to be appointed. 7 Application to review the financial management order. The Tribunal also had an application from ZH to review the financial management order and appoint him instead of the Protective Commissioner as his mother's financial manager. In answer to a question on the application form as to whether there was any potential conflict of interest between himself and his mother, ZH wrote that he was in his mother's will and that that he had loaned money to his mother in the past. 8 When dealing with such an application, the Tribunal may revoke or confirm the appointment. Before revoking the appointment of the Protective Commissioner, the Tribunal must be satisfied that it is in the best interests of the protected person that the appointment be revoked: Guardianship Act 1987, s 25U(4)(b). In this case, ZH said that the Protective Commissioner had not been managing his mother's estate in her best interests. The Tribunal had a letter from the Protective Commissioner dated 15 June 2007 saying that ZH had frequently contacted his office in relation to four issues, namely: a) the $15,000 debt, b) an allegation that his deceased brother had misappropriated money from his mother's account, c) the issue about his brother being buried in his mother's plot, and d) the existence of a property in Croatia in which his mother has an interest. 9 The Tribunal was not satisfied on the basis of anything ZH said that the Protective Commissioner had acted improperly in relation to any of those matters. The Tribunal also said that "his continued claim on the estate gives rise to a conflict of interest" and that his application recognised that fact. There was an intractable dispute about the burial plot between ZH and his siblings and the Tribunal noted that if ZH were appointed as financial manager, that conflict would be likely to be exacerbated. The Tribunal concluded that further family conflict was not in ZI's best interests and that it is required to keep in mind the importance of preserving family relationships: Guardianship Act, s 4. Grounds of Appeal 10 Denial of procedural fairness. ZH said that he arrived at the hearing a few minutes before it started. He said he was given a copy of the report from the Investigation Officer employed by the Tribunal but did not have time to read that report before the hearing started. He also said that during the hearing he was given a copy of the letter from the Protective Commissioner dated 15 June 2007. He said that he did not read that letter until after the hearing. ZH also said that the Tribunal did not give him an opportunity to explain that his niece and nephew had buried their father in his mother's burial plot. Finally, he said that the Tribunal had made up its mind either before the hearing or during a break because the presiding member did not adjourn to discuss the decision with the other panel members prior to making a decision. He said that each of these matters constitutes a denial of procedural fairness. 11 Rules of procedural fairness. Although there is no statutory obligation on the Tribunal to comply with the rules of procedural fairness, the Tribunal has a common law obligation to afford procedural fairness to people whose interests may be affected by the decision. ZH was entitled to be accorded procedural fairness as his interest in being appointed as his mother's financial manager stood to be affected by the Tribunal's decision: Kioa v West (1985) 159 CLR 550 at 584 per Mason J. The hearing rule of procedural fairness requires that a decision-maker give parties a reasonable opportunity to be heard before making a decision affecting their interests. Where a person's interests are affected by a decision, and no issue of confidentiality arises, that person should be given an opportunity to respond to adverse information that is credible, relevant and significant to the decision to be made: Kioa v West (1985) 159 CLR 550 at 629 per Brennan J. While every detail of the evidence is not required to be put to the person, the substance or gravamen of that evidence should be disclosed: Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247. 12 Opportunity to read material in advance. ZH did not point to anything in the Investigator's Report that took him by surprise or that was credible, relevant and significant to the Tribunal's decision. However, he said that the letter from the Protective Commissioner was inaccurate and misleading because it said that he had made a claim on his mother's estate for $15,000. He said that he lent his mother the money in 1981 but has never made a claim on her for that money. Rather, he has sought the Protective Commissioner's assistance in claiming the money from his brother's estate. He said that he had no opportunity to respond to the evidence in the Protective Commissioner's letter during the hearing. It was of concern to him that the Tribunal had relied on this letter when it concluded that his continued claim on his mother's estate gave rise to a conflict of interest. 13 Findings. ZH is correct when he says that the letter from the Protective Commissioner dated 15 June 2007, suggests that he requested reimbursement of the $15,000 loan from his mother's estate. That comment is inconsistent with another letter that the Protective Commissioner wrote to ZH dated 9 May 2007. ZH provided a copy of that letter to the Appeal Panel. The letter says that the Protective Commissioner had consulted a firm of solicitors for advice as to the possibility of the mother having a claim on the estate of the brother to recover the $15,000. That advice apparently related to the likelihood of success of a claim by either the ZI or ZH against the estate of the brother. The letter is consistent with ZH's assertion that he did not make a claim against his mother's estate for the $15,000. Nevertheless, the Tribunal found that his continued claim on his mother's estate gives rise to a conflict of interest. 14 Conclusion. It may be that the Protective Commissioner's advice that ZH had requested reimbursement of the $15,000 from his mother's estate was incorrect. The Tribunal accepted that advice and made a finding that was, to some extent, based on it. Even if the advice was not correct, the Tribunal did not make an error of law in making that finding. The Tribunal will not have erred as long as there was some evidence to support its finding: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 149. There was evidence to support the Tribunal's finding in this case. That evidence included the Protective Commissioner's advice and the material in ZH's application in which he stated that the fact that he had loaned his mother money could constitute a potential conflict of interest if he were the manager of his mother's financial affairs. Consequently, the Tribunal's finding did not disclose an error of law even if it was, to some extent, based on incorrect information. 15 ZH also said that he was denied procedural fairness because he did not have sufficient opportunity to read the Protective Commissioner's report. The material in that report was credible, relevant and significant to the decision to be made. However, ZH had an adequate opportunity to respond to the substance of the material in the report. He addressed the issues in the report during the hearing. Although many sections of the tape recording of the hearing could not be transcribed, it is clear that ZH told the Tribunal about the loan at page 32 of the transcript. The presiding member asked ZH directly at p 34 what should happen in relation to the money he had lent his mother. ZH told the Tribunal specifically at page 35 that he was not going to make a claim against his mother for the money. That evidence was in conflict with the evidence provided by the Protective Commissioner and the Tribunal preferred the Protective Commissioner's evidence. As we have said, that was not an error of law. Having read the transcript we are satisfied that ZH was given a reasonable opportunity to respond to the information in the letter from the Protective Commissioner, even though he did not have a copy of that letter. In those circumstances there was no denial of procedural fairness. 16 Opportunity to explain situation about the burial plot. ZH also said that he did not have an opportunity to present his case because after taking a 15 minute break, the Tribunal reconvened and then concluded without giving him an opportunity to present his case. 17 Conclusion. Having read the transcript, we do not agree with ZH's characterisation of what happened at the hearing. ZH had a reasonable opportunity to talk about his concerns in relation to the burial plot. He did so many times: see pp 25, 28, 31 and 45 of the transcript. We are satisfied that he was given an adequate opportunity to present his case. The Tribunal members took a break saying that they wanted the parties to think about whether there was anything else the Tribunal needed to know before making a decision. When the Tribunal reconvened, the presiding member asked the parties whether there was anything more that they wanted to say. The Tribunal then gave both ZH and his sister, who was on the phone, an opportunity to raise any further issues. ZH is correct when he says that after hearing these final submissions, the Tribunal made a decision without adjourning. However, that does not mean that ZH was denied the opportunity to present his case or that the Tribunal had pre-judged the case. The Tribunal gave the parties a final opportunity to put anything further to it. Nothing that was put during that time persuaded the Tribunal to change the preliminary view that it had apparently reached during the break. 18 Other grounds of appeal on a question of law. The only remaining grounds of appeal were that the Tribunal allowed ZH's sister to speak on behalf of the other sisters and that the Tribunal made an order in relation to his mother's property in Croatia over which it has no jurisdiction. 19 Conclusion. In relation to his sister speaking on behalf of the other sisters, the Tribunal is not bound by the rules of evidence and may inform itself on any matter in such manner as it thinks fit: Guardianship Act 1987, s 55. If the Tribunal did allow one person to speak on behalf of another, that does not constitute an error of law. In relation to the question of the Tribunal's jurisdiction, the Tribunal's role was merely to decide whether to substitute one manager for another manager. Whether or not that manager was authorised to deal with property in Croatia was not something the Tribunal had jurisdiction to decide. 20 For the reasons we have given, none of the questions of law raised by ZH amount to an error which justifies the decision being set aside. Appeal on other grounds 21 Principles for extending to the merits. ZH also appealed against the merits of the Tribunal's decision. He requires the Appeal Panel's leave to do so: ADT Act, s 118B(1)(b). 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: K v K [2000] NSWSC 1052. Young J noted that [15], that "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". 22 ZH's grounds for requesting leave. The reasons ZH gave for requesting leave to appeal against the merits of the Tribunal's decision refusing the guardianship application were that his mother has no legal guardian, staff at the nursing home support the appointment of a guardian, the Catholic Cemetery Trust will only discuss the issue of the burial plot with ZH's legal guardian and it is ZI's wish that he look after her. 23 Conclusion. The Tribunal was aware of all of the matters raised by ZH when it made its decision and took those matters into account. There was nothing unfair or unorthodox about the way the Tribunal went about its fact finding process. Leave to appeal against the merits of the Tribunal's decision is refused. Orders 1. Leave to appeal against the merits of the Tribunal's decision is refused. 2. The Tribunal's orders are affirmed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.