BCL v NSW Trustee & Guardian & Ors

ex tempore reasons for decision 1DEPUTY PRESIDENT: The decision is that we are going to dismiss the appeal and refuse leave to appeal on the merits. It is open to BCL at any time to apply to the Guardianship Tribunal for a review of the orders even before the expiry of the 12 month period. That can be a review of the orders themselves and/or a review of the people who have been appointed as guardians and financial managers. It seems to us that that is the appropriate course for BCL to undertake. 2BCL is a 71 year old man who resides currently in an aged care facility. He has two adult daughters. A colleague, who is a solicitor, has provided support for BCL throughout these proceedings. 3This is an appeal against a decision of the Guardianship Tribunal made on 14 June 2013. The Guardianship Tribunal made two orders, a guardianship order in relation to BCL appointing the Public Guardian as his guardian for one year with various functions and an order for financial management. One of his daughters and his solicitor colleague were appointed jointly as financial managers. 4An external appeal against the Guardianship Tribunal's decision was lodged on 26 September 2013. Under the transitional provisions to the Civil and Administrative Tribunal Act 2013 (NSW), this panel is to determine, as NCAT, the appeal against the Guardianship Tribunal's decision. In doing so, the panel must apply the provisions of the Administrative Decisions Tribunal Act 1997 (NSW), which has now been repealed and the provisions of the Guardianship Act 1987 (NSW) (as it was prior as at 14 June 2013). The jurisdiction of this panel to determine the appeal comes from s 67A(1) of the Guardianship Act. 5The Appeal Panel appointed a guardian ad litem for BCL, and in turn the guardian ad litem has instructed counsel, Mr Braine, to appear on his behalf. There was no appearance today from any other respondent, although we should note that the Guardianship Tribunal, which is a statutory party, indicated that their representative, Ms Sprouster, would be available, if needed, to answer any questions about the Guardianship Tribunal's practice and procedure. There was no need to contact Ms Sprouster but we appreciate the fact that she made herself available. Neither of BCL's daughters, nor the person from the aged care assessment team who was a party to the Guardianship Tribunal proceedings chose to appear at the appeal hearing today. 6The appellant has the right to appeal on a question of law and also to apply for leave to appeal against the merits of the Guardianship Tribunal's decision. We will deal first with the questions of law and determine whether there have been any errors of law on the Guardianship Tribunal's part. 7The first ground of appeal was that the Guardianship Tribunal had failed to apply the principles in s 4 and s 14 of the Guardianship Act. Section 4 states: It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles: (a) the welfare and interests of such persons should be given paramount consideration, (b) the freedom of decision and freedom of action of such persons should be restricted as little as possible, (c) such persons should be encouraged, as far as possible, to live a normal life in the community, (d) the views of such persons in relation to the exercise of those functions should be taken into consideration, (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, (f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, (g) such persons should be protected from neglect, abuse and exploitation, (h) the community should be encouraged to apply and promote these principles. 8Section 14 is the provision in the Guardianship Act which sets out the considerations the Guardianship Tribunal should take into account when making a guardianship order. Those considerations include the views of the person, in this case, BCL; any person who has the care of the person; and the importance of preserving family relationships; the cultural and linguistic environments; and the practicability of services being provided to the person, without the need for making such an order. 9The Guardianship Tribunal, in its written reasons at page 9, set out the principles in s 4 and s 14. Having set out those principles, the Tribunal highlighted a number of the principles that were relevant in this case, including the need to restrict BCL's freedom of decision making and freedom of action, as little as possible. The Guardianship Tribunal then outlined the considerations that it took into account, including BCL's own view, at the bottom of page 10 and the top of page 11 of its decision. The Guardianship Tribunal highlighted the importance of preserving BCL's existing family relationships, in particular the relationship with his daughters and the practicability of services being provided to BCL without the need to make a guardianship order. 10The Tribunal then set out the fact that one of BCL's daughters was prepared to be the alternative decision maker for her father but the Tribunal had decided that it would not be in BCL's best interest and welfare to attempt some informal decision making arrangement. The Tribunal saw the need for formal financial management and guardianship orders. The Tribunal set out its reasons for coming to that conclusion on the remainder of page 11 and page 12. 11The Appeal Panel expressed a view about what it means to take into account the various factors in s 4 and s 14 in the decision of WL v NSW Trustee and Guardian [2011] NSWADTAP 22 at [75] and [76]: . . .when making a decision about whether to revoke a financial management order, or to exercise any other function under the Guardianship Act , a decision maker is bound to observe any relevant principle in s 4. The decision maker may demonstrate that he or she has observed those principles either by referring to them expressly or by writing reasons for decision which demonstrate that all relevant principles have been observed. However, the principles are not expressed in absolute terms . Phrases such as "as little as possible" and "as far as possible" make it clear that observing a principle does not mean that, where a discretion exists, a decision maker must make a particular decision." 12That reasoning applies equally in this case. To say that the Tribunal must observe various principles does not mean that the Tribunal is bound, for example, to make a decision which restricts a person's freedom of decision and freedom of action as little as possible. Other considerations, including the capacity of the person and the practicality of providing services to that person, are also relevant. 13The Guardianship Tribunal went into considerable detail to express the various factors in s 4 and s 14(2), to take those factors into account and to weigh them against other relevant considerations. A reading of the Tribunal's decision as a whole satisfies us that the Tribunal was not only mindful of those principles when it made its decision but applied those principles to the particular facts of the case. We conclude, in those circumstances, that the Tribunal has made no error of law on that count. 14The next ground of appeal was that the Tribunal failed to take into account conflicting views expressed at the hearing as to BCL's capacity to manage his affairs. With respect, we do not agree with that submission. The Tribunal carefully took into account the differing views as to BCL's capacity that were in evidence before the Tribunal. The Tribunal had evidence from a geriatrician, from an occupational therapist, from BCL himself and from his daughters and colleague. Again, a reading of the Tribunal's decision satisfies us that the conflicting views, especially those of BCL that he was able to live independently, were taken into account by the Tribunal. Taking those views into account does not mean that the Tribunal was obliged to accept that evidence when there was conflicting evidence from expert witnesses. 15The third ground of appeal is that the Tribunal gave considerable weight to the evidence of a geriatrician, Dr Kinchington, but failed to enquire of BCL's general practitioner, Dr Alterator, as to his assessment of BCL's capacity. Our understanding of the Guardianship Tribunal's procedures is that there is an investigation team, which contacts parties and talks to them about evidence that would be relevant. It would have been open to BCL, and his legal representative, to obtain a report from the general practitioner. Instead, BCL chose to rely on expert evidence from a geriatrician, even though that witness had only known or been involved with BCL's care for some six months. 16We appreciate that Dr Alterator had known BCL for a considerably longer period, but the Guardianship Tribunal does not err by failing to ensure that a medical report from a general practitioner is before it. That is the case particularly in circumstances where the expertise of a geriatrician was available to the Tribunal. 17The fourth ground of appeal is that the Tribunal gave inadequate reasons for its decision on a particular point. That point was that the Guardianship Tribunal did not explain why it was not satisfied that the two individuals appointed as financial managers would not also be suitable persons to be appointed as guardians. 18Subject to some exceptions which are not applicable to these proceedings, the Guardianship Tribunal has a duty to provide each party with "formal written reasons" for its decisions: Guardianship Act, s 68(1B). But no decision of the Tribunal will be invalid because of any informality or want of form: s 68(2). At common law there is a judicial duty to give adequate reasons: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 269-70. That duty applies to tribunals as well as courts: Absolon v NSW TAFE [1999] NSWCA 311 at [66]. 19In Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 Meagher JA set out three fundamental elements of a statement of reasons: First, a judge should refer to relevant evidence. Secondly, a judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached. Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. 20In this case the Guardianship Tribunal gave adequate reasons in each of those three areas. The reasons for their finding that BCL's daughter was not a suitable person to be the guardian were set out at pp 13 and 14 of the Tribunal's decision. The reason that the Tribunal did not consider BLC's colleague as a potential candidate to be the guardian for BCL was that he did not indicate that he was prepared to accept such an appointment. As the Tribunal noted at page 14 of its decision: "No other private person had indicated to the Tribunal that they would be appointed as the guardian for BCL. On that basis the Tribunal appointed the Public Guardian as BCL's guardian." 21The other grounds of appeal have already been considered. For example, Mr Braine, representing BCL, says that the Guardianship Tribunal did not set out how it was in BCL's best interests to appoint different people as financial managers and guardians. As we have pointed out, the Tribunal set out carefully reasoned arguments based on the evidence as to why the Public Guardian was the only suitable and available person to be appointed as BCL's guardian. 22That brings us to the application of the appellant for leave for the appeal to extend to the merits of the Tribunal's decision. That application was based on a submission supported by some evidence that BCL's capacity had significantly improved since the Guardianship Tribunal's decision in 2013. The appellant tendered evidence from BCL's general practitioner, Dr Alterator, dated 19 February 2014 which expressed the view that BCL "could now be returned to the community and be able to manage his own financial, medical and accommodation affairs." 23In his submissions to the Tribunal Mr Braine also lists other evidence on which he relies as further or fresh evidence before the Appeal Panel. Those matters include a letter from Ms Shirley Way as to the unsuitability of BCL's current placement in the aged care facility. The assessment was made on 12 February 2014. Mr Braine also tendered evidence of BCL's colleague (one of the joint financial managers) to the effect that BCL is competent to reside independently with minimal assistance. Finally, Mr Braine drew attention to the financial manager's view that he is able to conduct the role of financial manager without the assistance of BCL's daughter and is also prepared to undertake the duty of sole financial manager. 24The grounds on which the Tribunal would extend an appeal to the merits of the Tribunal's decision have been frequently quoted in previous decisions. The main authority is the Supreme Court decision in K v K (2000) NSWSC 1052. In that case Young J observed at [15] that: . . .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. 25The appellant in this case does not make that submission. Rather the submission is that evidence obtained after the Guardianship Tribunal's hearing now indicates some regained capacity on the part of BCL. In the course of discussion with Mr Braine he conceded that if the Appeal Panel extends the appeal to the merits of the Guardianship Tribunal's decision, the Tribunal's role is to re-hear the matter rather than conduct a new hearing. 26There are several authorities which set out the principles on which the Appeal Panel would consider an application for admission of further or fresh evidence. But all those decisions make it clear that the further or fresh evidence would have to relate to the Tribunal's decision at first instance and have been evidence which was relevant at that time to that decision. In particular, we note the principles set out in Building Professionals Board v Hans (2008) NSWADTAP 13, at [53] and following where the Tribunal makes the following point at [54]: If the Appeal Panel is to exercise its discretion in favour of the party applying for leave - and I interpolate that that is leave to adduce further evidence - it must be affirmatively satisfied that having regard to the findings of the Tribunal at first instance the further evidence if tendered at the hearing conducted by the Tribunal was likely to have produced a different result. 27A similar conclusion was expressed by the New South Wales Court of Criminal Appeal in a decision of Gianoutsos v Glykis (2006) NSWCCA 137 drawn to the attention of the Appeal Panel by Mr Braine. In that case the Court reviewed the decisions in relation to the admissibility of further or fresh evidence and quoted at [37] the principle set out in CDJ v VAKJ (1998) 197 CLR 172, 201-202: For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error. 28It is the decision at first instance that the Appeal Panel must examine. It is not relevant to an examination of that decision whether the circumstances have changed since that time. For that reason leave is refused for the appeal to extend to the merits of the decision and the appeal is dismissed.