Victorian Civil and Administrative Tribunal Act 1998 - witness summons - power to set witness summons aside - no application to set summons aside - whether power exercisable by Tribunal on its own initiative - grounds for setting aside - abuse of process - recipient of summons unable to give relevant evidence - expert witness summonsed but not summonsed to give expert evidence - finding that evidence not relevant - summons set aside.

MEDIA NEUTRAL CITATION: AS (Guardianship) [2006] VCAT 2143

ORDER: The Tribunal sets aside the summons to witness.

The Tribunal appoints the Public Advocate as limited guardian of the represented person.

Ms. M. Milsom, guardian, Office of the Public Advocate ("OPA")

R v. Baines [1909] 1 KB 258

R v. Hove Justices; ex parte Donne [1967] 2 All ER 1253

Re Hulls and Victorian Casino and Gaming Authority (unreported, AAT of Victoria, Judge Fagan P, 15 July 1997)

Fried v. National Australia Bank Ltd. [2000] FCA 911; (2000) 175 ALR 194

Brand v. Digi-Tech [2001] NSWSC 425

1. AS is aged 79 years. She has dementia and now resides in a nursing home. STL (State Trustees Limited) has been her administrator since early 2004. The Public Advocate was her guardian from that time until January of this year.

2. JS, one of AS' sons, was the original applicant for a guardianship and administration order. In his application, made at the end of 2003, he stated that AS had suffered severe memory problems since mid-2002.

3. When the Tribunal first appointed a guardian and administrator, it considered a report by Geriatrician Dr. Michael Hum that included the opinion that AS had dementia - "most probably a mixed picture of Alzheimer's and vascular dementia". There was also a report by neuropsychologist Phillip Dingjam that described "a moderately advanced case of Alzheimer's disease".

4. There were various hearings between 2002 and 3 January 2006, when the Tribunal revoked the guardianship order.

5. The Director of Nursing at the nursing home where AS resides ("the DON") made an application for a guardianship order on 25 July 2006. Two days later she applied for an urgent hearing. I made a temporary guardianship order on 1 August 2006. The circumstances, recorded more fully in the order, were essentially these. JS applied to the Supreme Court of Victoria for a writ of habeas corpus. He notified the Tribunal about that on 13 July. The DON informed the Tribunal that the Court ordered that a writ issue directing that AS be brought before the Court on 2 August. By implication, the DON made the further statement that the Court granted liberty to apply to have its order vacated in the event that the Tribunal made a guardianship order before then. (This statement was supported by a letter addressed to the Public Advocate by lawyers for one of the parties to the Supreme Court proceeding. Further, the Tribunal obtained a copy of the order. It was dated 26 July 2006. By paragraph 3 of the order there was granted liberty to apply). The DON submitted that if the Tribunal did not make a guardianship order it was likely that the Court would give effect to AS' desire to return to her home. She further submitted however that AS needed high level care that could not properly be provided at home and that her return home would threaten her accommodation status. A report in support of the application by Dr. Philip Street, Geriatrician, was received by the Tribunal. The report, dated 28 July 2006, included the opinion in effect that AS was, by reason of disability, unable to make reasonable decisions in relation to her person or circumstances.

6. The Tribunal later obtained confirmation from the Prothonotary of the Supreme Court that no orders were made in the Supreme Court proceeding further to the one dated 26 July.

JS' submissions and guardian's and administrator's reports

7. JS made written submissions dated 7 August 2006. He submitted that the guardian was not a suitable person to carry out that role. (I refer to this guardian as "the former guardian", being the officer of OPA to whom the Public Advocate's powers were at all material times delegated. On the other hand, the current delegate is Ms. Milsom, who attended the hearing).

8. JS said that he visited his mother during January and February 2006 when she was a patient at Normanby House, St. George's Hospital, Kew. She told him she wanted to go home. At that time there was no guardianship order in effect. In early February JS informed the social worker there that the guardianship order had been revoked and was told by the social worker that she was aware of that fact. During a later visit by JS to Normanby House, in February, he was told by the Medical Director that, on the instructions of the former guardian, AS had been transferred to other accommodation. The Medical Director disclosed telephone conversations he had with the former guardian and Mr. Wells (a more senior OPA officer) "where it was apparent that both [the former guardian] and Mr. Wells were continuing to act" on the guardianship order. JS said that "[a]ll parties concerned were well aware that the Guardianship Order was no longer in effect at the time".

9. Later in his submission JS said that the Medical Director told him that the former guardian had said that there was a current intervention order that prevented JS approaching his mother and that JS should not be informed where she was taken. He told JS he had to go by the decision of the former guardian "who claimed that she was still Guardian". JS said that the Medical Director "insisted that he was going on the decision of the former Guardian". JS also alleged that the former guardian misrepresented to Normanby House staff that there was a current intervention order in force restraining JS from approaching his mother. (In his application in 2003 JS stated that in 2001 his mother obtained an intervention order against him but that it was revoked in 2003).

10. JS submitted that, because there was "serious misconduct" by the OPA officers involved, neither should continue making decisions or acting as guardian for AS. Instead there should be a guardian who knew AS and was familiar with her past life and culture.

11. JS told me that he applied to the Supreme Court because AS had said she was in the nursing home against her wishes and wanted to go home. Without a guardianship order the nursing home and the administrator "had no legal right to continue detaining her there". The Public Advocate was not doing anything about AS' "unlawful detention", and the Medical Director's "allegations" were too serious to ignore.

12. STL provided a report to the Tribunal dated 14 August. Among other matters, the report indicated that STL was investigating the withdrawal of cash from AS' bank account. STL had raised this with JS but he "refuses to respond". STL stated also that it had requested JS to vacate AS' property, but he was refusing to do so or to attend to payment of any outgoings. STL had commenced Supreme Court proceedings for his eviction. The report asserted, finally, that JS had been aggressive and abusive towards STL staff.

13. OPA provided reports dated 21 and 31 August. The first report, of 21 August, was made by the former guardian who visited AS her nursing home that month. AS did say that she wanted to return home but she also expressed the belief that she was not living permanently at the nursing home. She liked the staff there and the residents were generally nice to her. She needed full assistance with dressing, bathing, toileting and moving around. She would need one to one 24 hour nursing care at home and two to one care at peak times. CS, her youngest son was reported to support her being cared for at the nursing home. The second OPA report, of 31 August, was made by the new guardian, Ms. Milsom. She confirmed that AS would not attend the hearing, but AS told her when she visited that morning that she liked where she was and that the nurses were kind. The DON told Ms. Milsom that AS needed high level nursing care. Both the DON and CS told Ms. Milsom in effect that there needed to be a guardianship order. CS said he was happy with the care given AS at the nursing home. He would not attend the hearing because he was assaulted by JS the last time they attended the Tribunal. Attached to the report was a letter by CS in which he expressed the view that a guardian was needed and that the Public Advocate should be guardian.

14. At JS' request, summonses were issued and served on the Medical Director of Normanby House and Mr. Wells. Mr. Wells attended the hearing but a letter to the Tribunal written prior to the hearing on behalf of the Medical Director advised that he was overseas at the time and could not attend the hearing (upon his return) because of a long term University commitment.

15. I heard evidence on 4 September 2006 and reserved my decision.

16. JS did not concede that AS was incapable of making reasonable decisions though he did not have any further medical or other expert evidence about her current condition. He said that his mother had a "problem" that he first noticed on 7 June 2002. He understood that it was Alzheimer's Disease and that Alzheimer's Disease generally worsened over time. When he saw AS at his older brother's funeral earlier this year he thought that her condition had not deteriorated since he last saw her. He said that it was difficult for him to say how she was now, but he knew his mother well and there were certain things she could make decisions about. She could live at home provided she had a carer. JS was unhappy that he could not visit her and, especially, that his son had been unable to visit her. He sought a writ of habeas corpus rather than apply for a guardianship order because he had never had a favourable outcome when he applied to the Tribunal. Asked if his purpose was to have AS return to her home, he said that it was - if she could do so safely and it was in her best interests. She consistently said that she wanted to go home and every day at about 4.00 p.m. she tried to leave the nursing home. He was not aware of her saying that she was happy to be where she was. If he was guardian, and she told him she wanted to remain in the nursing home, he would not (necessarily) follow that. He would decide what was in her best interests.

17. At first JS said that he would not be able to be guardian given the general state of affairs, including the proceedings commenced by STL. He finally said that would be prepared to be guardian although he recognised that the circumstances meant that this would not be straightforward. Another person, a neighbour, might be willing to be guardian. JS had not made up his mind what he would do if he were guardian. AS could remain at her nursing home or go to another facility, preferably one with residents and carers who could speak her first language, which was not English. If possible, she could go home, for visits at least.

18. JS was given a copy of Dr. Street's report and the OPA and STL reports and time to consider them. He said that nothing in Dr. Street's report surprised him but submitted that "to a certain degree" AS could make reasonable decisions. He could not see a problem with his mother making decisions. He then said that she could decide to go home, provided that she had a carer. He had been her carer.

19. JS told me that he had done many things for his mother. While his older brother was alive JS had taken his mother to see him every day. CS had alleged that JS had assaulted her, but that was not true. There was conflict that CS had caused. His mother had approached the Magistrates' Court for intervention orders years ago but she was influenced by CS.

20. Asked if he thought it would make a difference to the litigation involving STL and him if AS returned home, JS said it would not: STL would sell the property whether or not AS was there. The dispute with STL arose, he said, because he had an equitable interest in the property and STL wanted to sell the property without giving him anything. He denied that STL had raised the issue of bank account withdrawals with him. And he had not had any discussions with STL about paying outgoings. He did not dispute that he had been aggressive towards a representative of STL but this was after she told him of a discussion she had had with AS that JS believed she could not possibly have had. He said that he yelled at that person. He also had a minor dispute with someone at the hospital where his older brother had been a patient. He agreed that he had written angry letters to the Tribunal about this proceeding. He said he had been portrayed as the villain although it was he who had first applied to the Tribunal.

21. I raised with JS the statement in his written submission that "all parties" had been aware that the guardianship order had been revoked and indicated to him that it seemed surprising that the social worker, but not the Medical Director, would be aware of that. He agreed that he would expect the social worker to have told the Medical Director. Despite this, he did not agree that it was possible that the Medical Director knew that the order was revoked. The former guardian, by telling the Medical Director that JS should have no contact with AS, was acting as a guardian, he maintained when it was suggested to him that the former guardian may have been acting merely as an advocate for AS.

22. Mr. Wells gave evidence. He could not recall his discussions with Normanby House staff in February but referred to a note made of his discussions with the social worker and the Medical Director after the social worker called OPA seeking "an opinion" as to whether AS should be discharged into JS' care. Mr. Wells advised them that non-discharge would be justified on "duty of care" grounds, for it was understood that an intervention order remained in effect. He did not believe that any OPA officer represented that there was a guardianship order in effect. In a later conversation, the Medical Director having obtained confirmation that there was no longer any intervention order in effect, Mr. Wells said that nevertheless, on the basis of the duty of care owed by the hospital to AS, he considered that she should not be discharged. He undertook to make himself available to discuss the matter with JS but did not hear from him.

23. The Guardianship and Administration Act 1986 provides that the Tribunal cannot make a guardianship order unless satisfied that the order would be in the best interests of the proposed represented person: section 22(3). The Tribunal must be satisfied that the person is a person with a disability; is unable by reason of the disability to make reasonable judgments in respect of all or any of the matters relating to their person or circumstances; and is in need of a guardian: section 22(1). ("Disability" includes dementia: section 3(1)). In determining whether or not a person is in need of a guardian, the Tribunal must consider the wishes of the person, so far as they can be ascertained, and whether the needs of the person could be met by other means less restrictive of their freedom of decision and action; the wishes of any nearest relatives or other family members of the person; and the desirability of preserving existing family relationships: section 22(2).

24. Concerning the choice of guardian the Act provides that the Tribunal may appoint as a guardian any person who has attained the age of 18 years and consents to act as guardian if the Tribunal is satisfied that that person will act in the best interests of the proposed represented person; is not in a position where the person's interests conflict or may conflict with the interests of the person; and is a suitable person to act as the guardian of the person: section 23(1). In determining whether a person is suitable to act as the guardian of a represented person, the Tribunal must take into account the wishes of the person; the desirability of preserving existing family relationships; the compatibility of the person proposed as guardian with the represented person and with the administrator (if any) of the person's estate; whether the person proposed as guardian will be available and accessible to the represented person so as to fulfil the requirements of guardianship of that person: section 23(2).

25. Where it appears to the Tribunal that, among other things, no person fulfils the statutory requirements for appointment as guardian, the Tribunal may appoint the Public Advocate.

26. Finally, where the Tribunal makes an order appointing a limited guardian in respect of a person, the order made must be that which is the least restrictive of that person's freedom of decision and action as is possible in the circumstances: section 22(5).

27. JS made carefully prepared written and oral submissions, mainly in relation to the choice of guardian. On the other hand, he was unable to challenge the medical evidence and evidence of the need for a guardian seriously. I am satisfied that AS has a disability that impairs her capacity to make reasonable decisions about matters including her accommodation and that she needs a guardian to make those decisions for her. I accept that AS has expressed certain wishes to JS, but I also accept that she has made conflicting statements to Ms. Milsom and others. Although AS may say now that she wants to go home, or that she can make her own decisions and wants to do so, I am satisfied that she is incapable, that she needs a guardian, and that it is in her best interests that a guardian be appointed. The real question is whether the Public Advocate or JS should be guardian. For reasons I give below, I consider that the Public Advocate, and not JS, should be appointed. No concrete proposal was made for any other person to be guardian: no other proposed guardian attended the hearing to confirm his or her consent to be guardian and to satisfy the Tribunal that his or her appointment would be in AS' best interests.

28. I deal first with the summons to the Medical Director. There is no express power in the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act") (section 104) or the Victorian Civil and Administrative Tribunal Rules 1998 ("the Rules") to set aside a summons. Pizer's Annotated VCAT Act ((2d edition), JNL Nominees Pty. Ltd., Melbourne, 2004) paragraph [3887] states that the Tribunal has an implied power to quash a summons issued under section 104 of the Act which power "may be exercised on the application of the person who received the summons or on the application of a party". Cases including Re Hulls and Victorian Casino and Gaming Authority (unreported, AAT of Victoria, Judge Fagan P, 15 July 1997) are cited. The President there considered section 45 of the now repealed Administrative Appeals Tribunal Act 1984, sub-section (2) of which is almost identical to section 104 (1) of the VCAT Act. At page two His Honour said in effect that there was no doubt that the power given by the provision to issue a summons also contained an implied power to quash a summons where it constituted an abuse of the process of the Tribunal. In that case the summons was quashed on the application of the recipient of the summons because the evidence proposed to be given had no relevance to the subject of the proceeding: see also R v. Baines [1909] 1 KB 258 and R v. Hove Justices; ex parte Donne [1967] 2 All ER 1253.

29. There was no application in this case to set aside the summons. Williams Civil Procedure - Victoria (Butterworths, Sydney, 1987, Volume 1), refers at paragraph [I 42.01.35] to the inherent jurisdiction of the Supreme Court to intervene to prevent an abuse of process. And rule 42.07 of the Supreme Court (General Civil Procedure) Rules 2005 provides that the Court "may set aside a subpoena either wholly or in part".

30. Paragraph [I 42.01.45] of Williams is headed Who may apply for subpoena to be set aside and refers to jurisdictions where Rules of Court expressly permit the Court on its own motion or on the motion of a person having a sufficient interest to set aside a subpoena. Even though the Tribunal does not have similar Rules it is relevant to note that in Fried v. National Australia Bank Ltd. [2000] FCA 911; (2000) 175 ALR 194 at 199 Weinberg J said that "[i]f a subpoena is issued which ought to be set aside, it matters little, at the end of the day, whether it is set aside at the instigation of a party to the proceeding, or because the court itself has come to the conclusion that this should occur": see also Brand v. Digi-Tech [2001] NSWSC 425 (24 May 2001), Supreme Court of New South Wales, Hunter J.

31. For the Tribunal this is of course a matter of implied, not inherent, power. In my view section 104 of the VCAT Act impliedly gives the Tribunal power to set aside a summons not only on the application of the person who received the summons, or on the application of a party, but also on its own initiative. The power to set aside a summons appears to me to be especially important in this jurisdiction where lawyers are not usually involved and where abuse, intentional or unintentional, may perhaps more easily occur. For reasons that follow, I set the summons aside.

32. It was not proposed that the Medical Director give expert opinion concerning the represented person's disability or capacity. Rather, JS confirmed that he proposed that the Medical Director give evidence about some conversations between him and the former guardian, and Mr. Wells. In my view that proposed evidence was not relevant to this proceeding, for it was intended to support the submission that the former guardian was not a fit person to be guardian. (I say more about the submission itself later). The former guardian ceased to be guardian in the month prior to the hearing, however. The guardian has actually always been the Public Advocate. He has now delegated his powers to another officer, Ms. Milsom. I was not informed of any proposal that he delegate his powers to the former guardian again. In any event, in circumstances such as the present ones, if there were any complaint to be made about the conduct of an individual officer employed in OPA, the complaint would properly be made to the Public Advocate, rather than necessarily be the subject of inquiry by the Tribunal.

33. In the alternative, JS submitted that the former guardian's alleged conduct was relevant to OPA as an organisation. In my view, however, the Medical Director's proposed evidence could hardly bear on the question whether as an organisation OPA was fit or not fit to provide a guardian. JS' real point was that his mother's best interests required that the guardian be someone who knew her and understood her needs and wishes. The Medical Director's proposed evidence had no relevance to that issue. It is significant, finally, that there is no alternative in this case to the appointment of the Public Advocate.

34. Before leaving the subject, and while acknowledging that neither the Medical Director nor the former guardian gave evidence, there are some general observations that I should record. At one point in his written submission JS stated that "[a]ll parties concerned were well aware that the Guardianship Order was no longer in effect at the time". It does not appear that he meant this literally but at least he stated that the social worker at Normanby House was aware that the guardianship order was revoked. It would be surprising if this were not documented on the hospital file or otherwise made known to the Medical Director. JS contended, in essence, that the OPA officers were continuing to act as though guardianship order was in effect, though this really appears to be the inference that he drew. He did not say, for instance, that he actually heard the former guardian assert that she was still guardian or even that the Medical Director told him that he had been informed by any OPA officer unequivocally that the guardianship order was still in effect. Even without a guardianship order in place there was at the time a legitimate role for OPA officers to play in advising Normanby House staff and advocating for AS. Obviously, if an OPA officer had asserted that the guardianship order was still in effect, knowing that to be false, that would amount to serious misconduct, but this does not appear to be the case. Similarly, if they asserted that an intervention order was in effect when they knew that to be false that too would be serious misconduct. It is not clear what was said about that. One possibility is that there was an innocent (albeit serious) misrepresentation about it. Another possibility is that all that was said was that there had been an intervention order. The Medical Director finally had confirmed that there was no longer any intervention order in place. (The evidence of conversations about intervention orders, incidentally, tends to show that it was indeed appreciated by everyone involved that there was no guardianship order in effect. This is for the reason that - if the Medical Director had truly been led to believe that there was a current guardianship order - then it should not have been so important to establish whether or not there was also a current intervention order).

35. I turn now to the issue of JS' eligibility for appointment as guardian. It is of course a question for the Supreme Court and not for the Tribunal whether JS' application for a writ of habeas corpus was an abuse of process. JS explained why he did not instead apply to the Tribunal for a guardianship order. Nevertheless that course of action was open to him. It seems doubtful to me that it could be in AS's best interests for him to have applied to the Supreme Court as he did: it was potentially disruptive and distressing to her, and unnecessarily so.

36. I accept that JS knows his mother and that he understands what may be described as her cultural needs. He has had limited contact with AS for some time and so it was difficult for him to appreciate her present capacity and her care needs. Nevertheless, I am concerned that JS essentially discounted expert medical and other opinion about her capacity and her need for high level care. Although he said his mind was not made up, I am concerned that he would contemplate that AS return home despite the weight of evidence indicating that to do so would be contrary to her best interests. The fact that he resides in her home and that he is in dispute with the administrator is relevant. It indicates a conflict of interest. In this regard, I see no basis for the suggestion that STL would sell AS' home even if she was residing there. JS is clearly incompatible with the administrator.

37. For these reasons, I do not consider that JS should be guardian. I take into account also the CS' attitude and the fact that AS has previously applied for intervention orders, even if she was influenced by CS to do so and has since then changed her mind about that.

38. The powers of the guardian should be limited to making decisions concerning accommodation; health care; access to the represented person; and access to services.

39. In the OPA report dated 21 August it was submitted that the guardianship order should be made for three years, whereas in the report dated 31 August it was submitted that the order should be made for 12 months. I note that the administration order is due for reassessment no later than 10 August 2007. It will be convenient for the guardianship and administration orders to be reassessed at the same time.

Having reserved its decision on 4 September 2006, the Tribunal now makes the following order.

The Tribunal sets aside the summons to [the Medical Director] issued on 30 August 2006.

The Tribunal is satisfied that the proposed represented person has a disability; is unable by reason of that disability to make reasonable judgments about her person or circumstances; and needs a guardian.

1. The Public Advocate, Office Of The Public Advocate 5/436 Lonsdale Street, MELBOURNE 3000 VIC, be appointed limited guardian of the represented person with powers and duties:

to make decisions concerning medical or dental treatment or other health care

to make decisions concerning access to the represented person

2. The Tribunal approves delegation by the Public Advocate of the Public Advocate's powers and duties as guardian of the represented person to an officer or employee employed in the office of the Public Advocate.

3. This guardianship order be reassessed no later than 10 August 2007.

4. The guardian shall, no later than 3 business days prior to the date on which this order is to be reassessed, provide to the Tribunal a written report concerning the represented person and decisions made by the guardian on behalf of the represented person.

5. This order shall continue to have effect until further order of the Tribunal.

6. The guardian shall immediately notify the principal registrar in writing of any change of address of the represented person or the guardian.

The represented person, the applicant, or any other person, may apply to the Tribunal for a reassessment of this order at any time.