WO v Protective Commissioner [2006] NSWADTAP 47

Appeal Panel - External

CITATION: WO v Protective Commissioner [2006] NSWADTAP 47

APPELLANT WO PARTIES: FIRST RESPONDENT Protective Commissioner DECISION MAKER Guardianship Tribunal

FILE NUMBER: 068007

HEARING DATES: 13/07/2006 & 18/08/2006

SUBMISSIONS CLOSED: 08/18/2006

EXTEMPORE DECISION DATE: 08/18/2006

DATE OF DECISION: 09/14/2006

BEFORE: Hennessy N - Magistrate (Deputy President); Leal S - Judicial Member; Whaite A - Non Judicial Member

CATCHWORDS: Financial management order - review - Identify/apply wrong statutory test - No evidence - Procedural fairness

MATTER FOR DECISION: Principal matter

FILE NUMBER UNDER APPEAL: C/24293

DATE OF DECISION UNDER APPEAL: 08/19/2005

LEGISLATION CITED : Guardianship Act 1987

CASES CITED: KA v The Public Guardian and Others [2004] NSW ADT AP 25

APPELLANT In person

FIRST RESPONDENT REPRESENTATION: No appearance DECISION MAKER E Cho, legal officer COUNSEL ASSISTING J McDonnell, solicitor

ORDERS: The decision of the Guardianship Tribunal dated 19 August 2005 in relation to WO is affirmed

REASONS FOR DECISION - EX TEMPORE DECISION 1 WO is a 51 year old man with a history of mental illness and alcohol abuse. He lives in Department of Housing accommodation and receives a disability support pension. He has been the subject of a formal financial management order since 2002, although we understand that prior to that time he was in a voluntary relationship with the Office of the Protective Commissioner and that they managed his money. 2 On 22 April 2002 the Guardianship Tribunal committed WO's estate to management. The Guardianship Tribunal renewed that order on 7 April 2003. On 24 May 2004 WO applied to have the financial management order revoked. That matter came before the Guardianship Tribunal on 30 August 2004. The Guardianship Tribunal decided to confirm the financial management order, but ordered that it be reviewed in 12 months. 3 After that hearing the Office of the Protective Commissioner implemented a trial on the recommendation of the Guardianship Tribunal, which required WO to demonstrate to his case manager that he could manage his finances on his own. Our understanding is that there was an initial trial for a three month period whereby WO was given his weekly allowance of $165 in one lump sum instead of the previous arrangement where he had been given that amount on three separate days of the week. If that three month trial had been successful, then it was the intention of the Protective Commissioner to allow WO to access his full pension on a trial basis so that he would then pay his own rent, bills and other expenses. The matter came before the Guardianship Tribunal on 19 August 2005 following the initial trial by the Protective Commissioner. 4 Present at that hearing were WO, his brother, Douglas McMaster and Mr Jaggard, who was his case manager. Ms Elaine Tamblyn, the regional manager from the Office of the Protective Commissioner, gave evidence by phone. The Guardianship Tribunal reviewed the financial management order and confirmed it. One of the factors that was taken into account in making that decision was that the trial of the weekly allowance had failed because WO had asked for money outside the time that that money was due, even though he was warned that this could jeopardise the trial. That was the reason that the Protective Commissioner gave for stopping the trial at that stage. 5 The Guardianship Tribunal had before it a number of reports including a report of the senior investigation officer with the Guardianship Tribunal, which summarised the reports and the conversations that that officer had had with WO and others. The Guardianship Tribunal also had before it its previous orders and reasons, a report from the Office of the Protective Commissioner dated 12 July 2005, a report from Mr David Jaggard, the case manager, and a letter from Dr Pasqualon who is WO's treating psychiatrist. 6 The Guardianship Tribunal said in its reasons that WO had stated that he believed he was capable of managing his financial affairs. The Tribunal went on to say, "[WO] advised that he would be able to effectively budget but was not able to articulate a plan for this. [WO] confirmed that he spent a substantial part of his pension on tobacco and that he drank two or three longnecks of beer each day". 7 WO appealed against that decision to this Tribunal, however, he did not provide any written grounds for appeal either in that notice or in any subsequent correspondence with the Tribunal. Ms Cho appeared for the Guardianship Tribunal. As is her practice, she did not take an active role in terms of the issues in dispute, but was available to give the Tribunal assistance in relation to the practice and procedures of the Guardianship Tribunal. The Tribunal decided to appoint an officer from the Crown Solicitor's Office to assist it at the hearing, given the fact that WO did not have legal representation and there was no other party who was opposing the appeal. Mr McDonnell helpfully provided written submissions in relation to the appeal. He provided the factual background to the appeal and summarised what the Guardianship Tribunal had done. Mr McDonnell then went on to anticipate errors of law that might be available to WO since he had been unable to articulate those matters himself. 8 Mr McDonnell suggested three possible errors of law: (i) that an incorrect legal test had been applied, (ii) that there had been a breach of procedural fairness, and (iii) that there was an error of law in that the Guardianship Tribunal may have made a finding with no evidence to support that finding. 9 In relation to the first ground, that is whether or not the correct legal test had been applied, Mr McDonnell submitted that the Guardianship Tribunal had applied the correct test under s 25P of the Guardianship Act 1987. Having reviewed the Guardianship Tribunal's decision, we agree with that submission. Consequently there is no error of law on that count. 10 Mr McDonnell also submitted that there was no error of law on the "no evidence" ground and we agree with that submission. 11 That leaves the ground as to whether or not the Guardianship Tribunal had denied WO procedural fairness. We will set out the principles in relation to procedural fairness summarised in Mr McDonnell's submission. The Appeal Panel of the Tribunal has referred on several occasions to the obligation of the Guardianship Tribunal to afford procedural fairness to persons whose rights, interests or legitimate expectations stand to be affected by a decision. In KA v The Public Guardian and Others [2004] NSW ADT AP 25, the Appeal Panel gave the following summary of the relevant principles of the hearing rule aspect of procedural fairness at para 9, When making decisions, the Guardianship Tribunal must afford procedural fairness to any person whose "interests, rights or legitimate expectations" are affected. ( Kioa v West (1985) 159 CLR 550 at 584 per Mason J; See, also Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; Johns v Australian Securities Commission (1993) 178 CLR 408; Annetts v McCann (1990) 170 CLR 596.) The content of the hearing rule must be "appropriate and adapted to the circumstances of the particular case." ( Kioa v West (1985) 159 CLR 550 per Mason J at 585.) In the ordinary case, a person whose interests, rights or legitimate expectations are affected should be given an opportunity to deal with adverse information that is " credible, relevant and significant to the decision to be made." ( Kioa v West (1985) 159 CLR 550 per Brennan J at 629.) While all documents which contain adverse material do not necessarily have to be provided to a party, the substance or gravamen of that material should be disclosed. ( Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247; Re Pergamon Press Ltd [1971] CH 388; Ansell v Wells (1982) 43 ALR 41; Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs [2000] FCA 113 at 557.) 12 Mr McDonnell also quoted other authorities that the Tribunal had made in relation to this issue, but we will not go into them in detail in these reasons. 13 The Appeal Panel was concerned about the issue of procedural fairness in the light of evidence given by WO on the first day of the hearing as to what he said had taken place at the Guardianship Tribunal. At p 18 of the transcript of hearing on Thursday 13 July 2006, the following exchange occurred between myself and WO: HER HONOUR: Thanks, Ms Cho, so WO do you remember being handed a copy of a document when you got to the Guardianship Tribunal? APPELLANT: Yeah. HER HONOUR: Yes, and what was it, do you remember? APPELLANT: I don't know, no one told me that. HER HONOUR: When Ms Cho says that the Guardianship Tribunal would have said to you what was in Mr Jaggard's report and what was in Dr Pasqualon's report, do you agree that they probably did that? APPELLANT: Well, I didn't get them, I didn't-- HER HONOUR: You didn't get a copy, I know you didn't get a hard copy, you didn't get a copy, but, okay. But do you remember the Guardianship Tribunal, John Cipolla telling you what was in Mr Jaggard's report. APPELLANT: No, he didn't. HER HONOUR: You don't remember that? APPELLANT: No, he didn't. HER HONOUR: Or what was in Dr Paqualon's report? APPELLANT: No, he didn't do that either. HER HONOUR: Did he tell you that they were opposing it because the trial hadn't worked? APPELLANT: Nope, didn't say that. HER HONOUR: Did Mr Jaegard say that to you though? APPELLANT: No. 14 The questions and answers go on in the same vein. 15 That evidence raised concerns on the Appeal Panel's part as to whether WO understood that a factor that would be taken into account by the Guardianship Tribunal when making its decision was the failure of the initial trial. We were unable to access the tapes of the Guardianship Tribunal's decision because the Guardianship Tribunal had erased those tapes because more than six months had passed since the decision. Ms Cho advised the Tribunal that it was the Guardianship Tribunal's practice to erase tapes after that time because the appeal period is 28 days from receiving the reasons. In this case the Appeal Panel accepted WO's appeal out of time and that led to the situation where the tape had been erased. Consequently the Appeal Panel was concerned to obtain some evidence in addition to that of WO himself as to what had occurred in the Guardianship Tribunal proceedings. To that end the Appeal Panel asked Mr McDonnell to contact the witnesses who had participated in the Guardianship Tribunal appeal. Those witnesses were WO's brother and Mr Jaggard. 16 Mr McDonnell attempted to contact both those people and was successful in speaking to them. He prepared a witness statement for signature by WO's brother, but because he also has a case manager, Mr McDonnell was concerned that he not sign anything without receiving advice from that case manager. In the time that Mr McDonnell had to contact WO's brother, he was unable to obtain a signed statement from him. Mr McDonnell was successful in contacting Mr Jaggard who is now working in New Zealand, and we spoke to Mr Jaggard by phone. Mr Jaggard responded to a question Mr McDonnell put to him in an email. That question was, "Do you recall whether WO would have been aware that one of the reasons you and Dr Pasqualon were opposed to the revocation of the order was that you thought he had been unsuccessful in the trial?" Mr Jaggard's response was, "I do remember that the issue of a trial of money management was discussed at the hearing. WO was part of that discussion". 17 In oral evidence by phone to the Appeal Panel, Mr Jaggard said that he was given a summary of the reports before the Guardianship Tribunal, and when asked if that was the report from the investigation officer, he said "yes". Mr Jaggard also recalled that WO said at the Guardianship Tribunal hearing that he had not been given a trial. He couldn't say definitely whether or not WO had been given an opportunity to respond to his report or to that of Dr Pasqualon, but he recalled that it was standard practice for the Guardianship Tribunal to advise parties as to the contents of such reports. 18 Mr Jaggard did recall WO speaking during the hearing. That recollection accords with the Guardianship Tribunal's reasons for decision where they record the evidence that WO gave. WO then gave some further evidence to the Appeal Panel admitting that he was given a trial. We gather that there may have been some confusion in WO's mind about whether giving him a weekly allowance in a lump sum was a trial or not. The evidence from the Protective Commissioner was that that was a preliminary trial before a trial giving him his full pension would have come into effect. So there may have been some misunderstanding on WO's part when he told the Guardianship Tribunal that he had not been given a trial. WO did tell the Appeal Panel today that he agreed that he had been given a chance to tell the Guardianship Tribunal what he wanted to say. He admits now that he was given a trial and that he spoke during the hearing. 19 Our conclusion is that WO was not denied procedural fairness by the Guardianship Tribunal. We are satisfied that he had access to a copy of the investigator's report and also that he knew that both Mr Jaggard and Dr Pasqualon had taken the failure of the trial into account in the recommendations that they made in their reports. 20 We note that WO was not given a hard copy of the reports from Mr Jaggard, the Protective Commissioner or Dr Pasqualon. As Mr McDonnell makes clear in his submissions, the best way to ensure that a party has an adequate opportunity to consider any reports is to provide the party with those reports as soon as they are made available to the Tribunal. As Mr McDonnell also points out, correctly in our view, this is particularly important where, as in this case, a party suffers from a disability which could impair their ability to rapidly absorb the contents of a report. 21 The reports were dated several weeks prior to the hearing and presumably they were received by the Guardianship Tribunal in time for them to have been provided to WO. However, procedural fairness does not demand that a hard copy of all reports be given in advance to the parties. It is sufficient if the substance or gravamen of the reports is disclosed to parties. 22 Although we do not have the benefit of the tapes in this case, we do have the benefit of evidence from WO and from Mr Jaggard, as well as the written reasons for decision. On the basis of that evidence, we are satisfied that WO was aware that his non compliance with the conditions of the initial trial was a factor that the Guardianship Tribunal would be taking into account in determining whether or not to revoke the financial management order. 23 We are also satisfied that he had an adequate opportunity to respond to that evidence during the course of the hearing. It follows that there has been no denial of procedural fairness in this case and that the Guardianship Tribunal did not make any error of law on that count. WO has not applied for the appeal to be extended to the merits of the Guardianship Tribunal's decision. In any event, had he made that request it would have been refused on the basis that there is no substantive reason that we can see which would justify the extension of the appeal on that basis. Order 24 The decision of the Guardianship Tribunal dated 19 August 2005 in relation to WO is affirmed.