AEU v NSW Trustee and Guardian

Grounds of Appeal on questions of law 6There are two grounds of appeal on questions of law. The first is that AEU was not afforded procedural fairness because he had not been given enough time to prepare for the hearing. The second is that the legal member who presided at the hearing was said to be biased.

Insufficient time to prepare for the hearing 7The nursing home manager lodged the application with the Guardianship Tribunal on 6 May 2011. Because a Bankruptcy Notice had been issued and a quick response was required, the Tribunal set the matter down for an urgent hearing on 7 June 2011. 8The application for a financial management order did not contain any contact details for AEU other than his address. On 31 May, a Tribunal officer emailed AEU requesting that he contact the Tribunal. A Tribunal officer attempted to contact AEU by phone on 1 June after obtaining phone numbers from the nursing home manager. A file note records that the landline was disconnected and the mobile number went straight to voice mail. 9On 2 June AEU received the application by express post. He telephoned the Tribunal and left a message. The following day a Tribunal officer returned his call and requested that he provide copies of relevant documents including the power of attorney. On 6 June AEU faxed a copy of those documents and asked that he be informed if the Tribunal required any other documents to be brought to the hearing the following day. AEU attended the hearing. 10The rules of procedural fairness, require that a person whose interests may be affected by a decision, must be given a fair and unbiased hearing before the decision is made. For the decision to be fair, the person must be given a reasonable opportunity to prepare their case. What amounts to a reasonable opportunity will depend on considerations such as the consequences of the decision, the nature of the issues to be considered and the need for urgent action. 11In this case, AEU had notice of the hearing by at least 3 June 2011, three days before the hearing. He says that had he been given more time, he would have been able to consult his solicitor and review the situation to ensure that the relevant facts and documents were gathered together before the hearing. 12At a directions hearing before a single member of the Appeal Panel on 4 October 2011, AEU was asked to file and serve particulars of documents that would have been provided to the Guardianship Tribunal if more time had been available. No documents were filed. AEU was asked the same question at the hearing. The only document he mentioned was a report from a social worker who he had consulted in 2007. AEU conceded that such a report may not be "absolutely material" but said that it would explain the background to his father being placed in a nursing home where he could not afford to live. 13While AEU may have benefited from consulting his solicitor prior to the hearing, he did not give any evidence as to the steps he had taken to attempt to do so. Three days is a very short period of time to prepare for a hearing, but it was adequate in this case because of the urgency of the matter: Chen Zhen Zi v Minister for Immigration and Ethnic Affairs [1994] FCA 985; (1994) 48 FCR 591 at 600-601 per Black CJ, Lee and Heerey JJ. AEV had been issued with a Bankruptcy Notice which required him to either pay the debt or make arrangements for the settlement of the debt within 21 days. If that was not done, bankruptcy proceedings may have been taken against him. At that stage, even though the nursing home had lodged a caveat over AEV's unit, the prospect of AEV being declared bankrupt was not considered to be in his best interests. The Guardianship Tribunal agreed.

Actual or perceived bias 14AEU's second ground of appeal on a question of law was that the legal member was biased. According to AEU, when he consulted with his solicitor, Mr Holt, about the appeal, Mr Holt disclosed that he had been instructed in relation to another appeal against one of the legal members' decisions. According to AEU, the appeal was "extremely acrimonious" and Mr Holt's client was ultimately successful. Although Mr Holt did not represent AEU in the Guardianship Tribunal proceedings, AEU says that the legal member would have known of his connection with AEU because Mr Holt was a witness to the Power of Attorney and that document had been provided to the Tribunal. AEU said that in those circumstances, the legal member may not have been given him the "full benefit of judicial diligence". 15The test for the appearance of bias is "whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide": Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, at [6]. 16This ground of appeal makes several assumptions for which there was no evidence. It assumes that the legal member noticed that Mr Holt had witnessed the Power of Attorney, that she knew who he was, that she recalled that his firm had appealed against a previous decision of hers and that she was aware that there was some level of acrimony against her in relation to the appeal. All these matters are entirely speculative. Furthermore, as the decision maker, the legal member would not have been personally involved in the appeal. 17We are far from satisfied in this case that a fair-minded observer might reasonably apprehend that the legal member might not have brought an impartial and unprejudiced mind to the issues for determination.

Extension to the merits 18AEU applied for leave for the appeal to be extended to the merits of the Tribunal's decision. He spent a considerable amount of time during the hearing attempting to suggest that it was the conduct of others which had led to his father being in a dire financial situation. Firstly, he criticised the social worker who he had spoken to in 2007 for suggesting that his father live in a nursing home which he could not afford. Secondly, he criticised the nursing home for allowing his father to sign a contract with them without his involvement and for failing to transfer his father to a higher level of care which was less expensive. Finally, he criticised the Guardianship Tribunal for failing to discuss options as to how his fathers' financial issues could be resolved. No mention was made of the fact that he was living in his father's home, which was his only asset. 19AEU told us that he suffered from depression after he became unemployed in 2008 and that he was taking medication for about 18 months. 20The ADT Act does not contain any guidance on the relevant matters to be taken into account in determining whether leave should be granted for an appeal to extend to the merits of the Guardianship Tribunal's decision. The Supreme Court has provided some guidance on this question in the cases of K v K [2000] NSWSC 1052; S v S [2001] NSWSC 146 and Re R [2000] NSWSC 886. Those cases interpret s 67(1)(b) of the Guardianship Act 1987 which is the equivalent provision to s 118B(1)(b) of the ADT Act in relation to appeals from Tribunal decisions to the Supreme Court. In K v K , Young J observed at [15]: It would seem to me that s 67 of the Guardianship Act operates so that broad questions of administration and policy and the applicability of policy to individual cases, even if they are not questions of law, may well be subjects on which the Court will grant leave to appeal. On the other hand, 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. 21There is nothing in AEU's criticisms of others or in the fact that he was suffering from depression that raises broad questions of administration or policy or the applicability of policy to individual cases. Nor has AEU persuaded us that the Tribunal went about the fact-finding process in an unorthodox manner or in a way which is likely to produce an unfair result.

Orders (1)Leave for the appeal to extend to the merits of the Tribunal's decision is refused. (2)The Guardianship Tribunal's decision is 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. Decision last updated: 14 December 2011