Appeal Panel - External CITATION: OX v OW, OZ [2010] NSWADTAP 12 APPELLANT OX PARTIES: FIRST RESPONDENT OW SECOND RESPONDENT OZ FILE NUMBER: 098007 HEARING DATES: 22 October 2009 SUBMISSIONS CLOSED: 22 October 2009 DATE OF DECISION: 8 March 2010 BEFORE: Hennessy N - Magistrate (Deputy President); Leal S - Judicial Member; Wunsch A - Non-Judical Member CATCHWORDS: Procedural fairness, rights, interests and legitimate expectations, reasonable opportunity to present case. DECISION UNDER APPEAL: 2008/6250 FILE NUMBER UNDER APPEAL: C/40332 DATE OF DECISION UNDER APPEAL: 05/21/2009 LEGISLATION CITED : Powers of Attorney Act 2003 Administrative Decisions Tribunal Act 1997 Kioa v West (1985) 159 CLR 550 GM v Guardianship Tribunal [2003] NSWADTAP 24 Attorney-General for New South Wales v Quin (1990) 170 CLR 1 Minister for Immigration, Multicultural and Indigenous Affairs, Ex parte Lam (2003) 214 CLR 1 CASES CITED: Jones v Ekermawi [2009] NSWCA 388 Titan v Babic (1994) 49 FCR 546 Collection House Ltd v Taylor (2004) VSC 49 Rajski v Scitec Corporation Pty Ltd (Unreported, NSW Court of Appeal, 16 June 1986) APPLICANT B Ilkovski, barrister REPRESENTATION: FIRST RESPONDENT No appearance SECOND RESPONDENT M Unwin, solicitor ORDERS: 1. The decision of the Guardianship Tribunal not to make any order under s 36 of the Powers of Attorney Act 2008 is set aside 2. The case is remitted to the Guardianship Tribunal to be heard and decided again with the hearing of further evidence. REASONS FOR DECISION Introduction 1 OW is a 79-year-old woman who lives in an aged care facility. She has dementia and is not capable of managing her financial affairs. On 22 February 1999, OW granted to her son, OZ, an enduring power of attorney. Since that time her son has managed her financial affairs. Another son, OX, applied to the Guardianship Tribunal for a review of the making and of the operation and effect of the power of attorney: Powers of Attorney Act 2003 (POA Act), s 36. One issue was whether, when OW signed the power of attorney in 1999, she had the mental capacity to do so. The Guardianship Tribunal decided, among other things, that she did have capacity and dismissed the application for review. OX has appealed against that decision. Appeal 2 An appeal may be made to the Administrative Decisions Tribunal against a decision of the Guardianship Tribunal: POA Act, s 41. Such an appeal is an external appeal and can be made on a question of law or, with leave of the Appeal Panel, on other grounds: Administrative Decisions Tribunal Act 1997 (ADT Act), s 118B. The appeal in this case was made only on a question of law. OX alleged that the Guardianship Tribunal had failed to afford him procedural fairness because it had: a) failed to obtain the medical records of OW's treating medical practitioners; and/or b) failed to assist OX in obtaining or advising him how to obtain the medical records of OW's treating medical practitioners; and/or c) failed to afford OX a further opportunity to obtain the medical records of OW's treating medical practitioners. Background 3 The application form that the Guardianship Tribunal provides to applicants to complete, requests the names of health professionals who can give evidence about the capacity of the person at the time the power of attorney was executed. The following paragraph appears under the heading 'Contact Details for Written Reports': If your application is about whether the principal had a capacity in the past (when they made the enduring power of attorney), you are responsible for providing reports from doctors or others about the principal's capacity at the time the enduring power of attorney was made. Please provide the names of health professionals involved below. 4 In this section of the application form OX listed the names and contact details of Dr Emery Kertesz, Dr Terrance Mitchell, Professor Grant and psychologist Marjorie Carpenter. 5 In a document headed 'Review of enduring powers of attorney, information for parties', the following information is provided under the heading 'What does an applicant have to do?' A person who applies to the Tribunal to review and enduring power of attorney has specific responsibilities. . . . They must provide adequate evidence to support their application. An applicant may have to pay for the full medical or professional reports that they obtain from a doctor or professional. 6 Under the heading 'Confidentiality' on the Guardianship Tribunal's website, the following information is provided: In some situations, a professional may have concerns about a report being provided to anyone other than the Tribunal itself. If so, before providing the report, the professional should contact the Tribunal staff member who is looking after the application and talk about their concerns. However, you must appreciate that the Tribunal's overriding duty is to conduct its proceedings fairly. 7 On 21 October 2008, OX sent an e-mail to the Guardianship Tribunal, which said in part: Further to our telephone conversation and your request that I send you a copy of the power of attorney, in relation to my mother, [OW], and further assessments on Mum, you would have received my letter (posted last week) with a copy of the power of attorney. In the meantime, my sister has made contact with the various doctors that we listed in our original application. These were Dr Terrance Mitchell. .. Professor Grant . . . and clinical psychologist, Ms Marjorie Carpenter. . . all of these people have records relating to the treatment of Mum in their archives. I understand that some of the records pre-date Mum's signature on the power of attorney. All the above indicated that they will provide the records to you. However, they advised that, as neither my sister, or I have power of attorney, they will only provide the records on request from the (sic) you or your delegate at the tribunal. They will then fax the records to you. I would appreciate if you could initiate the request and let me know when you have received them. At that stage, I will provide my brother, [OZ] who used to be principal of the application, with a copy of the application we have made to the tribunal. Should you have any issues to discuss with me in the meantime, please contact me on my mobile . . .[number deleted]. 8 Two weeks later, having not received a reply to this e-mail, OX sent another e-mail to the Guardianship Tribunal dated 4 November 2008 saying: Further to my e-mail below. I have not heard from you whether you have received the necessary reports. This matter has become more pressing, following a phone call from my sister tonight . . . 9 OX did not receive a reply to this e-mail. 10 On 21 May 2009 the Guardianship Tribunal heard the application. During the hearing, the following exchange occurred between the Presiding Member and other parties: Member: Can we firstly talk about the matter of your mother's mental capacity at the time that she executed the power of attorney? The Tribunal does not have any health professional assessments as to your mother's capacity to sign a power of attorney in 1999. The Tribunal has a report from a Ms Marjorie Carpenter, who is a clinical psychologist, who had contact with your mother and your father. Her report, which you've got a copy of, doesn't address the issue of capacity. It doesn't take the issue any further, in terms of whether or not, I don't think that your mother has capacity. I mean, it's 1995, the consultations. . . We have a report from Dr Cortex, who is the current treating GP, the mother. However, she has only treated your mother, as I understand, since 2003, when she moved into the care facility. In an e-mail that you sent to the Tribunal, you indicate that your mother has had contact with a Dr Terrance Mitchell. Who's Dr Mitchell? OX : He's the family doctor.. . Member : Prior to 2003. OX's sister : Yes Member : We don't have any report from Dr Mitchell. OX : We requested it, didn't we? OX's sister : Yes. Member : We've never -- I haven't got a copy on my papers. OX : No. Member : have you received a copy from her? OX : No, well see all – everything, as far as we knew, went to the Tribunal. 11 In its reasons for decision concerning the making of the enduring power of attorney, the Guardianship Tribunal said that: There are no medical or health professional reports that have been provided to the Tribunal concerning [OW]'s mental capacity as at 1999. [OX] emailed the Tribunal advising that his mother had consulted a number of health professionals before and around the time of the execution of the power of attorney who could be contacted by the Tribunal. 12 There is no further explanation in the reasons as to why the Guardianship Tribunal did not respond to this email. 13 The Guardianship Tribunal made the following findings: a) that OW was able to reside at her home until 2003, 'a period of around four years since the execution of a power of attorney'; b) that while there were healthcare professionals who saw OW around 1999 'there was no conclusive diagnosis of her condition until 2001'; c) that there did not 'appear to be any conclusive diagnosis of her condition until 2001'; d) that there did not 'appear to be any medical assessments as to OW's mental capacity in 1999'; e) that OW was not 'receiving treatment or assistance for any significant cognitive condition in 1999'. 14 On the basis of those findings, the Guardianship Tribunal decided not to make any order under section 36 of the POA Act concerning the making of the enduring power of attorney. Grounds of Appeal 15 The Guardianship Tribunal listed the 21 October 2008 e-mail as a document which it considered in making its decision and made reference to it during the hearing (Transcript page 16, lines 13-14)). OX submitted that knowing the matters set out in the e-mail and the difficulty that OX had in obtaining the records, the Guardianship Tribunal breached the rules of procedural fairness by not: a) obtaining the medical records itself; or b) assisting OX to obtain the records; or c) offering an adjournment so that the records could be obtained. Submissions 16 OX submitted that in the email to the Guardianship Tribunal, dated 21 October 2008, he made it clear that: a) the medical practitioners referred to in the email, including Dr Mitchell, who was OW's GP in 1999, had medical records which predated OW executing the enduring power of attorney; b) unsuccessful attempts were made to obtain the records; c) the medical practitioners would only provide the records following a request from the Tribunal; d) OX expected that the Guardianship Tribunal would initiate a request for the records. 17 OX submitted that the Guardianship Tribunal must afford procedural fairness to all parties whose rights, interests or legitimate expectations are affected: Kioa v West (1985) 159 CLR 550 per Mason J at 584; GM v Guardianship Tribunal [2003] NSWADTAP 24 at [20]. According to OX it has been recognized that a 'legitimate expectation may consist of an expectation of a procedural right': Attorney-General for New South Wales v Quin (1990) 170 CLR 1, per Mason CJ at 21. 18 It was submitted that as a self-represented party, the Guardianship Tribunal was obliged to offer OX an adjournment. If OX had been legally represented, his lawyer is likely to have requested an adjournment once he or she realised that none of the records of the doctors referred to in the 21 October 2008 email were before the Tribunal. 19 OX's brother, OZ, made the following submissions: a) legal capacity in respect of the execution of a power of attorney is relevant only at 22 February 1999 and OX did not allege that he had reports or other documents giving an opinion as to OW's capacity at that time; b) it is not the role of the Guardianship Tribunal to advise the parties as to how to present their case or to gather and present evidence on behalf of a party; c) publications on the Guardianship Tribunal's website clearly state that it is the applicant's responsibility to provide one or more reports relating to capacity as at the time the power of attorney was made; d) OX's rights, interests or legitimate expectations are not affected because he was not a party to the power of attorney; e) the application for review was made on 24 September 2008 and not heard until May 2009. In that time OX had an adequate opportunity to put forward evidence as to capacity. Procedural Fairness – reasonable opportunity to present case 20 Rights, interests or legitimate expectations. The Guardianship Tribunal is required to afford procedural fairness to those whose 'rights, interests or legitimate expectations' are affected by the decision: Kioa v West (1985) 159 CLR 550. This requirement is sometimes referred to as the 'threshold test' for procedural fairness. Although OX submitted that his 'legitimate expectations' had been affected by the Tribunal's decision, a legitimate expectation cannot be the expectation of procedural fairness: Attorney General for New South Wales v Quin [1990] HCA 21; (1990) 170 CLR 1 at 55 per Dawson J. The concept of 'interests' is broad enough to include OX's interests in this case. Contrary to OZ's submission, OX is not required to have been a party to the power of attorney for his rights to be affected. A person who, in the opinion of the Guardianship Tribunal, 'has a proper interest in the proceedings or a genuine concern for the welfare of the principal' is entitled to apply for a review of the making or operation and effect of a power of attorney: POA Act, s 35(1). Although the Guardianship Tribunal identified OX's standing to make the application as an issue to be determined, it did not make an express finding about whether he was an 'interested person'. We have assumed that the Guardianship Tribunal accepted that, as OW's son, he met that description as he was permitted to make the application. His 'genuine concern' for OW's welfare and his consequent entitlement to commence proceedings in the Guardianship Tribunal, is sufficient to meet the threshold test for procedural fairness. 21 Reasonable opportunity to present case. The rules of procedural fairness require that OX receive a fair hearing. We accept OZ's submission that it is not the role of the Guardianship Tribunal to give legal advice to parties as to how to present their case or to gather and present evidence on behalf of a party. Nevertheless, the Guardianship Tribunal must give a party a reasonable opportunity to present his or her case. The precise extent of that obligation will depend on the circumstances. In general, the Guardianship Tribunal must ensure that parties, especially self-represented parties, understand what needs to be established before an order is made and are not disadvantaged in relation to the manner in which their case is presented. In addition, the Guardianship Tribunal is obliged to offer a self-represented party an adjournment, even if one was not sought, if that person would otherwise be disadvantaged in relation to the presentation of their case: Italiano v Carbone [2005] NSWCA 177; Titan v Babic (1994) 49 FCR 546; Collection House Ltd v Taylor (2004) VSC 49; Rajski v Scitec Corporation Pty Ltd (Unreported, NSW Court of Appeal, 16 June 1986). 22 Circumstances of this case. OX said in the email that it was his understanding that at least some of the records held by the relevant health professionals were prepared prior to 1999. It may be that none of the health professionals concerned hold any documents prepared on or before February 1999 that express an opinion about OW's capacity. Further inquiries need to be made as to whether documents are held and/or whether anyone can give expert evidence of OW's capacity at the time. The Tribunal's website makes it clear that it is the applicant's responsibility to provide one or more reports relating to the principal's capacity as at the time the power of attorney was made. However, in this case, OX advised the Tribunal by email that he had contacted the health professionals concerned and that they had indicated that they could not provide any relevant documents to OX but that they would provide them to the Tribunal, if requested to do so. If the Tribunal was unwilling to take that step, then it should have advised OX of that fact and made alternative arrangements. Despite a second email, the Tribunal did not contact OX about the information that the doctors may have had. The Tribunal ultimately decided that there was no evidence to support OX's submission after apparently ignoring OX's request that the Tribunal obtain that information. 23 While OX understood what needed to be established in order for his application to be successful, he was disadvantaged because he lost an opportunity to put information to the Guardianship Tribunal which was potentially relevant to his application: Minister for Immigration, Multicultural and Indigenous Affairs, Ex parte Lam (2003) 214 CLR 1, at 13-14 [36]-[37]. It is no answer that he had ample time in which to gather the evidence himself or that the information may not turn out to be relevant. In our view, there were measures that the Guardianship Tribunal could have taken to ensure that OX's difficulties were overcome: Jones v Ekermawi [2009] NSWCA 388 at [46]. Those measures include responding to OX's emails, making inquiries of the health professionals as to whether they held relevant documents or could give relevant evidence, discussing the issue at the hearing or, ultimately, adjourning the proceedings. The Guardianship Tribunal's failure to take any of those steps constitutes a breach of procedural fairness which is an error of law. For that reason, the decision of the Guardianship Tribunal not to make an order under s 36 of the Powers of Attorney Act 2008 is set aside and the case is remitted to the Guardianship Tribunal to be heard and decided again with the hearing of further relevant evidence, if available. Order 1. The decision of the Guardianship Tribunal not to make any order under s 36 of the Powers of Attorney Act 2008 is set aside. 2. The case is remitted to the Guardianship Tribunal to be heard and decided again with the hearing of further evidence. 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