AKX v NSW Trustee and Guardian

Supreme Court of the NT|2012-10-15

Introduction 1AKZ is an 84 year old man with Alzheimer's disease who lives in an aged care facility. The Guardianship Tribunal made a 12 month guardianship order in relation to AKZ and appointed his cousin and cousin's wife as his guardians. They can make decisions for AKZ about his health care, whether he should consent to medical and dental treatment and the services he should receive. AKZ's nephew and his nephew's wife have appealed against that decision. We have concluded that the appeal should be dismissed because the Guardianship Tribunal gave the nephew and his wife a fair hearing. We have also refused to give the nephew permission to appeal against the merits of the Guardianship Tribunal's decision. It made findings of facts in a fair and orthodox manner and which were based on the evidence. 2Not all the grounds of appeal put forward by the nephew as questions of law actually identify a question of law. We appreciate the difficulty of distinguishing between questions of law and other questions. From the grounds put forward we have identified an alleged breach of procedural fairness (denial of a fair hearing) as the only question of law. The other grounds, some of which were described as breaches of procedural fairness, do not identify a question of law and will be addressed when we consider whether to grant leave for the appeal to proceed against the merits of the guardianship order. 3We appointed a guardian ad litem to represent AKZ in the appeal proceedings.

Nephew's grounds of appeal on questions of law 7The basis of the nephew's appeal in relation to breaches of procedural fairness can be summarised as follows: (1)the hearing was rushed; (2)the Presiding Member cut him off at times; (3)he was not given an opportunity to respond to an allegation that he had abused staff at the aged care facility where AKZ was living; (4)he was not given an opportunity to respond to evidence from a social worker that he had complained about her; and (5)the Guardianship Tribunal gave its decision on the day instead of reserving. 8We were provided with a copy of the CD with the audio recording of the Guardianship Tribunal proceedings.

Hearing was rushed 9The matter was first listed for hearing before the Guardianship Tribunal on 24 February 2012. Because the Guardianship Tribunal was unable to hear evidence from all the parties and witnesses on that day, the hearing was adjourned to 4 June 2012. 10Both hearings were held outside Sydney and the members were booked on flights which meant that the time for the hearings was limited. The nephew was given leave to be represented by a lawyer who made written submissions and oral submissions during the hearing. Despite the presence of the lawyer, the Guardianship Tribunal allowed the nephew to present his case and to ask and respond to questions directly. The Presiding Member expressly asked whether the nephew had any further questions on more than one occasion. She also concluded the hearing by asking whether there were any other issues anyone wished to raise. The nephew is unable to identify what he or his lawyer would have said had they been given more time. 11We are not satisfied that the limited time available for the hearing denied the nephew a reasonable opportunity to present his case or to respond to the substance of any adverse or prejudicial information.

Cut-off by Member 12The nephew said that the Presiding Member cut him off, even though, in hindsight, he agreed that he had finished giving his evidence. We accept that on more than one occasion the Presiding Member reminded the nephew about the time constraints or asked him not to continue with what he was saying. However, we are satisfied that that was done in the context of the nephew making statements or asking questions which were not relevant to any issue in dispute. The Presiding Member also re-directed other parties and witnesses when they gave evidence or asked questions that were not relevant. 13The nephew conceded that he had finished giving his evidence when the Presiding Member cut him off.

Allegation of abuse 14When giving evidence about AKZ's welfare at the aged care facility, the cousin said that the nephew had been to the aged care facility and had been very abusive to staff. The nephew alleged that this constituted a breach of procedural fairness because it was untrue. We also presume that, if he had legal advice, he would contend that he was not given a reasonable opportunity to respond to that allegation. 15Shortly after the cousin made that comment, the Presiding Member asked the nephew to present his case and to respond to anything that had been said. He did not respond directly to the allegation of abuse. 16On appeal, the nephew attempted to adduce fresh evidence of a conversation his wife had after the hearing with an employee of the aged care facility. That evidence was said to be relevant to the allegation that the nephew had abused staff. We did not admit that evidence. Evidence of things that were said or done after the Guardianship Tribunal hearing had finished are generally not relevant to the question of whether procedural fairness was afforded at the hearing itself. 17Although the Presiding Member did not expressly invite the nephew to respond to the allegation that he had abused staff at the aged care facility, we are satisfied that he was given a reasonable opportunity to respond to that assertion. The Tribunal made no finding about that matter which suggests that they gave little or no weight to the cousin's evidence on that point.

Complaint against social worker 18The social worker assisted with AKZ's placement in the aged care facility. She mentioned on more than one occasion during the hearing that there had been a complaint about her and that she had not had any contact with AKZ since mid June 2012. 19The nephew said that the Guardianship Tribunal should not have allowed the social worker to refer to the fact that he had made a complaint about her because it was irrelevant and prejudicial. Again, we assume that, with legal advice, he would have said that he was not given a reasonable opportunity to respond. 20The audio tape confirms that the Presiding Member tried to prevent the social worker and other witnesses from giving irrelevant or prejudicial evidence. That did not prove to be an easy task especially when evidence was being given by phone. Nevertheless, even if the Guardianship Tribunal heard irrelevant or prejudicial evidence from the social worker, we are satisfied that the Tribunal gave it no weight because it was not mentioned in the written Reasons for Decision. We are also satisfied that although the Presiding Member did not expressly invite the nephew to respond, he had a reasonable opportunity to do so.

Reserving the decision 21After the hearing finished, the Members adjourned briefly to make their decision. The Members then reconvened and announced their decision together with short reasons. Written reasons were provided later. We assume that the nephew's point is that the Tribunal had already made up its mind and had therefore pre-judged the matter. If that were the submission it would come within the bias rule of procedural fairness. 22There is no evidence to support the nephew's assertion. Announcing the decision with short reasons on the day does not mean that the Tribunal had pre-judged the matter.

Conclusion re appeal on a question of law 23Although procedural fairness was identified as a question of law, we have found no breach of procedural fairness. Consequently, the nephew's appeal on a question of law is dismissed.

Leave to appeal on the merits 24Even if the Guardianship Tribunal has not made an error in relation to a question of law, leave can be given for an appeal to proceed on other grounds: Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456 at [60]-[61], [63]). We understand that the nephew is applying for leave for the appeal to be made in relation to the merits of the Guardianship Tribunal's decision. 25The Administrative Decisions Tribunal Act 1997 (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 in the cases of K v K [2000] NSWSC 1052; S v S [2001] NSWSC 146 and Re R [2000] NSWSC 886 (17 August 2000). Those cases interpret s 67 of the Guardianship Act 1987 which is the equivalent provision in relation to appeals from Tribunal decisions to the Supreme Court. In K v K, Young J observed at [10] that 'it has never been clearly decided what the circumstances are that should lead the Court to grant leave to appeal under s 67', but went on to make a number of observations on this point: see para [10]-[15]. After considering the relationship between the Court and the Tribunal, 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. 26The reasons the nephew gave for applying for leave to appeal against the merits of the guardianship order were that the Guardianship Tribunal: (1)admitted or took into account evidence that was irrelevant, unreliable or prejudicial; (2)excluded or failed to take into account evidence that was relevant and reliable; and (3)made findings which were not supported by the evidence. 27These matters all go to the way the Guardianship Tribunal went about its fact-finding task. We will summarise the points that the nephew made under each of these three headings and then determine whether either alone or in combination, those points justify giving leave for an appeal to proceed in relation to the merits of the guardianship order.

Guardianship Tribunal admitted or took into account irrelevant, unreliable or prejudicial evidence 28AKZ gave evidence by phone from the aged care facility. The nephew said that the Guardianship Tribunal should not have admitted that evidence or should not have taken it into account because AKZ confuses the nephew and his cousin. In addition, an employee of the aged care facility was present when AKZ was giving his evidence and could have influenced what he said. 29AKZ told the Guardianship Tribunal that he could not think of anyone he trusted to make decisions for him but would think about whether his cousin and his cousin's wife could make decisions about his care. The Guardianship Tribunal recorded those views in the decision. 30The nephew speculated that the presence of an employee of the aged care facility when AKZ was giving evidence could have been "prejudicial". 31According to the nephew, the Guardianship Tribunal should have obtained evidence from AKZ's geriatrician, Dr Guthridge, as to the symptoms of Alzheimer's disease. If that evidence had been obtained, the nephew said that the Guardianship Tribunal would have realised that paranoia, delusions and misidentification are symptoms of that disease. With that information, the Guardianship Tribunal would have discounted the evidence that AKZ wanted his cousin to be his guardian and accepted that AKZ often confused his cousin and himself.

Guardianship Tribunal excluded or failed to take into account relevant and reliable evidence 32Dr Guthridge gave oral evidence as to her view of AKZ's capacity when he signed an enduring guardianship form and a power of attorney in a solicitor's office in June 2011. The doctor acknowledged that she had not assessed AKZ at the time but had seen him 12 months earlier and again 18 months later. She speculated that given there was evidence that he was reluctant to sign those documents a week beforehand, and that the social worker was involved, "perhaps there's been some coercion in there." When summarising Dr Guthridge's evidence the Guardianship Tribunal said that Dr Guthridge was concerned about whether there had been some "pressure" applied at that meeting. 33In its findings, the Tribunal described Dr Guthridge's evidence as equivocal and repeated her evidence that she was unable to form a view about AKZ's capacity to sign legal documents in June 2011. The Guardianship Tribunal came to the following conclusion: Based on the available evidence, the Tribunal is not satisfied that [AKZ] had capacity to execute the Appointment of Enduring Guardian on 7 June 2011. 34The nephew made the point that because the cousin and his wife were present at the meeting when the documents were signed, the Guardianship Tribunal should have found that they were not suitable to continue to act as AKZ's guardian. 35Other evidence which the nephew said the Guardianship Tribunal should have taken into account was that the cousin and his wife had not been in regular contact with AKZ prior to May 2011. He submitted that a reasonable person who had capacity would not ask a person whom they did not really know, to be their guardian.

Guardianship Tribunal made findings not supported by the evidence 36The following findings were said not to be supported by the evidence: [The cousin and his wife] have made decisions for [AKZ] when called on to do so in November 2011 and there is evidence those decisions have been appropriate and considered. [The cousin and his wife's] views about [AKZ's] needs are compatible with the evidence about his wishes. There is evidence in the correspondence to the Tribunal from [the nephew] that they seek to take a proactive approach in relation to [AKZ's] care. The evidence from most of the witnesses, including [X], is that AKZ is a loner. He is self sufficient and does not like to socialise. He is private and presumably does not appreciate interference in his life. He has always been this way. This is inconsistent with the approach advocated by [the nephew].

Appropriate and considered decisions 37The nephew disagreed with the Guardianship Tribunal's finding that there was evidence that the cousin has made "appropriate and considered" decisions in relation to AKZ since November 2011. He said that a number of retirement facilities had contacted him thinking he was the cousin. He also said that the cousin had not initially told them where AKZ was living.

Cousin's views compatible with AKZ's wishes 38One of the reasons the Guardianship Tribunal gave for appointing the cousin and his wife as AKZ's guardian was that "Their views about [AKZ's] needs are compatible with the evidence about his wishes." The Guardianship Tribunal went on to say that: The only issue raised against them is whether they are willing to liaise with [the nephew] on matters relating to [AKZ]. They have never objected to [the nephew] having access to [AKZ] or to information regarding his care. [The cousin] said he would consult with them, although he said this had been difficult because of the aggressive approach taken by them. This was denied by [the nephew]. 39The nephew submitted that, contrary to the Guardianship Tribunal's finding, the cousin did deny him access to AKZ by not telling him that AKZ was in care or what aged care facility he was in. The nephew agreed that once he found out which facility AKZ was in there have been no issues in relation to access.

Proactive approach 40The basis for the nephew's objection to this finding was that the cousin and the staff at the aged care facility were also encouraging AKZ to socialise. Consequently, it was incorrect for the Guardianship Tribunal to say that he was the only one who took a "proactive approach" in relation to AKZ's care.

41The matters raised by the nephew are all issues going to the way the Tribunal dealt with, or made findings on, the evidence. The Guardianship Tribunal is not bound by the rules of evidence. It may inform itself on any matter in such manner as it thinks fit: Guardianship Act, s 55(2). The weight that evidence is given is a matter for the Guardianship Tribunal: R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456 at 488, per Diplock LJ. 42While the rules of evidence applied in courts can be relaxed in tribunals, the Guardianship Tribunal is still bound by procedural fairness and should only give weight to evidence that is relevant to the issues before it and logically probative: Re Pochi and Minister for Immigration and Ethnic Affairs (1977) 2 ALD 33; Papakosmas v R (1999) 196 CLR 650 at [23] per Gleeson CJ and Hayne J. The Guardianship Tribunal should ensure that when relaxing the rules of evidence "no real injustice will result": Northern Territory of Australia v Herbert [2002] NTSC 4 at [35] per Higgins J; Carew v Protective Commissioner [2005] NSWADTAP 13 at [25]. 43We are satisfied that the Guardianship Tribunal went about its fact finding task carefully and fairly. The Tribunal's informal processes mean that evidence is not usually formally admitted or excluded. While that can make it difficult to ensure that irrelevant and prejudicial material is not raised, the Guardianship Tribunal managed to restrict, though not entirely eliminate, that evidence. Where such evidence was given, the Tribunal gave it no weight in the reasons. When there was contradictory evidence, the Guardianship Tribunal made findings or drew inferences on the basis of the evidence that it accepted. 44The nephew and his wife believe that they are more suitable than the cousin and his wife to make decisions for their uncle and that their uncle would have preferred them. It is not our job to determine that issue. Our role is to ensure that the Guardianship Tribunal has made findings of fact in a fair and orthodox manner and that the result is not unfair. We are satisfied of those matters. Consequently, there is no justification for extending the appeal to the merits of the Guardianship Tribunal's decision.

Order

The appeal on a question of law is dismissed.
The decision of the Guardianship Tribunal to make a guardianship order in relation to AKZ and to appoint ALA and ALC as his guardians is affirmed.
Leave is refused for an appeal to proceed on any other ground. 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: 23 November 2012

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