Carew v Protective Commissioner and Ors [2000] WASCA 280 | Case summary

REASONS FOR DECISION Introduction 1 MW is an 84 year old man who lives in a nursing home. Doctors first diagnosed him as having dementia in 2002. Before moving to the nursing home, MW lived in his own home with support from a friend, Alan Carew and Mr Carew's son and daughter, Michael and Paula Carew. MW appointed Alan and Michael as powers of attorney before he moved to the nursing home. A woman by the name of Helena Stimpson lived in the same house as MW for many years. Ms Stimpson died in 1999. Her son and daughter, Barry and Helena junior, are in conflict with the Carew family over their mother's entitlement to the property in which she and MW resided and various financial and other decisions made by Alan and Michael Carew. 2 Ms Stimpson's daughter, Helena Stimpson jnr, applied to the Guardianship Tribunal (the Tribunal) for a guardianship and a financial management order in relation to MW. On 23 July 2004 the Tribunal made a limited guardianship order that MW be placed under guardianship. The Tribunal appointed the Public Guardian to be MW's guardian and to exercise functions relating to accommodation, health care, medical and dental consent and services. The Tribunal also made a financial management order that the estate of MW be subject to management under the provisions of the Protected Estates Act 1983 and that management be committed to the Protective Commissioner. Alan and Michael Carew disagree with these decisions and want a return to the status quo where the Carew family was caring for MW. They also want to be appointed as the financial managers of MW's estate. 3 Alan and Michael Carew appealed to the Appeal Panel of the Administrative Decisions Tribunal against the Guardianship Tribunal's decisions. A transcript of the Tribunal's proceedings was not available to the Appeal Panel. Accordingly, we issued a summons for the tape recordings of those proceedings. The Tribunal produced the tapes and access was given to all parties. The Carews listened to the tapes following the hearing and made further written submissions based on the tape recordings. Parties and representation 4 The Protective Commissioner indicated that he did not wish to present a case or make submissions. The Appeal Panel appointed Ms Critchley from the Aged Care Rights Service to represent MW and appointed the Crown Solicitor to assist the Appeal Panel in the proceedings. Ms Cho represented the Tribunal in a limited capacity consistent with the principles outlined by the High Court in R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 at 35. Appeal Panel's jurisdiction 5 The Appeal Panel's jurisdiction to hear external appeals comes from s 67A of the Guardianship Act 1987 (the Act) and s 118A of the Administrative Decisions Tribunal Act 1997 (ADT Act). An external appeal may be made as of right on any question of law or by leave on any other ground. (Section 118B(1) of the ADT Act.) We deal firstly with the grounds of appeal that raise possible errors of law. At the end of these reasons we consider whether or not leave should be given to extend the appeal to the merits of the Tribunal's decision. Issues 6 The Notice of Appeal and the oral and written submissions filed by the parties raised the following issues: Standing Does Michael Carew have standing to appeal against the guardianship order? Tribunal's jurisdiction (a) Did Helena Stimpson have standing to apply for guardianship and financial management orders? (b) Did the Tribunal err by accepting an unsigned application for guardianship and financial management? (c) Does the fact that the application contains allegedly incorrect statements affect the Tribunal's findings? Evidentiary, procedural and procedural fairness requirements Did the Tribunal breach any evidentiary, procedural, or procedural fairness requirements by: (a) accepting unsworn evidence, hearsay evidence and evidence which was allegedly false and misleading; (b) failing to clearly explain the questions they asked of MW and preventing the Carews from assisting MW to understand the questions; (c) failing to allow Alan or Michael Carew to cross-examine Ms Stimpson and other witnesses; (d) not giving Alan or Michael Carew a sufficient opportunity to respond to allegations made by Helena Stimpson in her telephone evidence; (e) accepting an amended application containing material adverse to the Carews during the course of the hearing; (f) failing to give Alan or Michael Carew sufficient opportunity to respond to a medical report of Dr Guy Davies dated 1 July 2004? (g) being biased in relation to its consideration of the applications. Other statutory requirements Did the Guardianship Tribunal fail to apply certain statutory requirements, namely: (a) to take into account any of the principles in s 4; (b) to take into account the views of the appellants as required by s 14(2) of the Act. Other grounds Do any of the appellants other grounds of appeal amount to questions of law? Standing 7 Does Michael Carew have standing to appeal against the limited guardianship order? On 13 December 2004 the Appeal Panel made a decision that Alan Carew has standing to appeal against the Tribunal's limited guardianship order. We did not decide whether Michael Carew has standing. In order to be entitled to appeal against the guardianship order, Michael Carew must have been a party to the guardianship application. Ms Cho, representing the Tribunal, told us that since MW had given Alan and Michael Carew a power of attorney, they were both parties to the financial management application. Ms Cho said that as both the financial management and guardianship applications were heard together, the Tribunal does not identify the parties to each application either at the hearing or in the reasons for decision. While we appreciate that it may not always be necessary to formally identify the parties in the Tribunal proceedings, from the Appeal Panel's point of view, it would helpful if we knew whom the Tribunal regarded as parties. 8 Issues. Under s 3F(2) of the Act Michael Carew is a party if he is "the person, if any, who has care of the person to whom the application relates." The circumstances in which a person has the care of another person are set out in s 3D. The questions the Appeal Panel must ask itself are firstly whether more than one person can be the carer of MW and if so, whether, immediately before MW moved to the nursing home, Michael Carew regularly provided him with domestic services and support or arranged for him to be provided with such services and support without receiving any payment. If not, are there other circumstances that would justify the Appeal Panel being satisfied that Michael Carew had the care of MW? 9 Can there be more than one carer? Although s 3F(2) refers to "the carer" that does not mean that there can only be one carer for a person. Section 8(b) of the Interpretation Act 1987 states that "a reference to a word or expression in the singular form includes a reference to the word or expression in the plural form." There will be many cases where siblings or a couple care for an older relative or a child and there is no reason why both people should not be regarded as the carer of that person if they meet the statutory tests. 10 Extent of Michael Carew's involvement. Michael Carew gave evidence that prior to MW moving into the nursing home, he would visit him once or twice a week, pay some of his bills and organise repairs to the house when necessary. He also did some shopping for him. He conceded that both his father and his sister provided services and support for MW more frequently than he did, but that he nevertheless provided regular, unpaid services and support to MW. 11 Conclusion. We are satisfied on the basis of this evidence that Michael Carew was regularly providing unpaid domestic services and support to MW or arranging for MW to be provided with such services and support immediately before MW moved to the nursing home. Consequently he was a party to the guardianship application and has standing to lodge an appeal against the Tribunal's limited guardianship order. Tribunal's jurisdiction 12 Did Helena Stimpson jnr. have standing to apply for guardianship and financial management orders? The appellants challenged Ms Stimpson's right to apply to the Tribunal given the conflict between herself and MW over her mother's entitlement to an interest in MW's property. Under the Act an application for guardianship can be made by a person who, in the opinion of the Tribunal, has "a genuine concern for the welfare of the person": s 9(1)(d). Similarly an application for financial management can be made by any person who, in the opinion of the Tribunal, has a "genuine concern for the welfare of the person who is the subject of the application": s 25I(1)(b). 13 Conclusion. In its reasons for decision, the Tribunal found that Helena Stimpson jnr was genuinely concerned about MW's welfare. That is a finding of fact that was open for the Tribunal to make on the basis of Ms Stimpson's relationship with MW and the matters set out in her application. The Tribunal may legitimately make a finding that an applicant has a genuine concern for the welfare of a person even if the applicant has had dealings with the person that may give rise to a conflict of interest. Consequently the Tribunal did not make an error of law in accepting an application from Ms Stimpson. 14 Unsigned application. The appellants objected to the Tribunal commencing a hearing which had been initiated by an unsigned guardianship and financial management application. 15 Conclusion. Neither the Act nor the Guardianship Regulation 2000 requires the application to be signed. Section s 55(2) provides that proceedings "shall be conducted with as little formality and legal technicality and form as the circumstances of the case permit." Section s 68(2) provides that, "No decision of the Tribunal shall be vitiated merely because of any informality or want of form." These provisions collectively point to a legislative intention to allow the Tribunal to determine matters of form and technicality such as whether to accept an unsigned application. The Tribunal accepts applications online. Consequently many of the applications the Tribunal receives will be unsigned. For these reasons, it is not an error of law for the Tribunal to commence proceedings on the basis of an unsigned application. 16 Application containing allegedly incorrect statements. The appellants also objected to the application on the basis that it allegedly contained false assertions. For example, Ms Stimpson asserted in her application that she was MW's "step daughter". According to the appellants, Ms Stimpson's mother and MW were never in a de facto relationship and Helena Stimpson jnr. only met MW at her mother's funeral. We note that Ms Stimpson clarified during the hearing that she was not MW's step daughter. The appellants submitted that the Tribunal should not have accepted the application and erred by failing to correctly define the relationship between the applicant and MW. 17 Conclusion. Section 105 of the Act makes it an offence to make a statement, or furnish information in an application that the person knows to be false or misleading in a material particular. However, even if Ms Stimpson did knowingly give false or misleading information, the Appeal Panel has no jurisdiction in relation to offences under the Act, nor does a contravention of s 105 amount to an error of law in the Tribunal's procedures or reasoning. The Tribunal's jurisdiction is not affected by the truth or falsity of statements made in the application form. Legislative context in which the Tribunal operates. 18 Introduction. The appellants raise several grounds of appeal which relate to evidentiary, procedural and procedural fairness requirements. As background to these grounds of appeal, we set out below the legislative context in which the Tribunal operates and then summarise what we understand to be the Tribunal's general practices when conducting a hearing. 19 Legislative framework. Section 59 of the Act gives parties certain statutory rights in relation to proceedings before the Tribunal. That section provides that: A party to proceedings before the Tribunal may: (a) call and examine any witness, (b) cross-examine any witness called by another party, (c) give evidence on oath, (d) produce documents and exhibits to the Tribunal, and (e) otherwise adduce, orally or in writing, to the Tribunal such matters, and address the Tribunal on such matters, as are relevant to the proceedings. 20 In addition, the Tribunal may compel a witness to attend a hearing and answer relevant questions: ss 60 and 61. These provisions are all hallmarks of adversarial proceedings involving disputes between parties. In P v P (1994) 181 CLR 583 at 634, McHugh J said of the "powers and procedures" outlined in an earlier but substantially similar version of these provisions that they "resemble those of the established courts". However, rather than resolving a dispute between parties, the Tribunal's jurisdiction is essentially protective with the focus being on the person who is the subject of an application for a guardianship or financial management order. The only procedural accommodation of this role are provisions which are common to many Tribunals, including that the Tribunal: - is not bound by the rules of evidence and may "inform itself on any matter in such manner as it thinks fit": s 55(1); - must conduct proceedings "with as little formality and legal technicality and form as the circumstances of the case permit": s 55(2); and - must give permission before a party can be represented by a barrister, solicitor or agent: s 58(1). 21 The fact that the Tribunal is not bound by the rules of evidence and may "inform itself on any matter in such manner as it thinks fit" does not detract from its statutory or common law responsibilities in relation to procedure. Nor does s 55(1) prescribe that proceedings should be conducted as an inquiry rather than in an adversarial manner. Although proceedings may be conducted informally, they "must be conducted according to law" and "the discretion given to the Tribunal must be exercised judicially": Dissanayake v Baldacchino [2000] NSWRT 216; see also Warwick Entertainment Centre Pty Ltd v McKenzie [2000] WASCA 280 at [10]; Ory and Ory v Betamore Pty Ltd (in liq) (1993) 60 SASR 393 at 414 per Duggan J; and Mitchell v Canal Rocks Beach Resort [2002] WASCA 331 at [38]-[44]. Such a provision "does not override the rules of evidence, but calls for the Court to exercise its judgment as to the manner in which it will inform itself of any matter in dispute before it. It may apply the rules of evidence or it may not, and where it decides to not strictly apply the rules of evidence it should ensure that "no real injustice will result": Northern Territory of Australia v Herbert [2002] NTSC 4 at [35] per Higgins J; see also A and B v Director of Family Services (Unreported, ACTSC, Higgins J, 31 May 1996 at [26]-[29]). 22 Practice of the Tribunal. Despite the lack of express legislative authority, the Tribunal conducts hearings in what can loosely be described as an inquisitorial manner. On the basis of the procedures adopted in this case, and the Appeal Panel's previous experience when determining appeals from Tribunal decisions, we are aware that investigation officers make inquiries of relevant parties and witnesses prior to the hearing and prepare a report for the Tribunal. Neither that report, nor the material gathered by the Tribunal including medical reports, is generally made available to the parties prior to the hearing. Parties are not sworn or affirmed and evidence is given in response to questions from the Tribunal, rather than in a formal uninterrupted fashion. Formal cross-examination is rare. Evidence from the person who is the subject of the application is often given in the absence of the other parties and witnesses. The Tribunal then conveys the essence of that evidence to the other participants 23 Consequences of Tribunal's practice. In many respects this informal style of proceedings suits the nature of applications to the Tribunal, which are not traditional party/party disputes. However, in other ways, the lack of a formal structure both for the giving of notice of the evidence and for the giving and testing of evidence during the hearing, makes it much more difficult for the Tribunal to comply with statutory procedural requirements and common law requirements of procedural fairness. Acknowledging this difficulty, we go on to consider the appellants' grounds of appeal which raise evidentiary, procedural and procedural fairness requirements. Nature of the evidence accepted by the Tribunal 24 Unsworn evidence. The appellants objected to the fact that the Tribunal did not require parties or witnesses to give evidence on oath. While s 59 allows a party to give evidence on oath, s 62 contemplates that a person may give unsworn evidence. In the absence of any requirement that a person give sworn evidence, and given that the Tribunal is not bound by the rules of evidence, we are satisfied that the Tribunal did not make an error of law in failing to require Ms Stimpson, or anyone else, to give sworn evidence. 25 Hearsay evidence. The appellants objected to the Tribunal's apparent acceptance of hearsay evidence. According to the appellants, if hearsay evidence is given the Tribunal should either reject it, or at least allow other parties to rebut it. As we have said, the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks fit. This means that it must "exercise its judgment as to the manner in which it will inform itself of any matter in dispute before it" ensuring that "no real injustice will result" from the relaxation of the rules of evidence: Northern Territory of Australia v Herbert [2002] NTSC 4 at [35] per Higgins J] In this case the Tribunal did not make any formal rulings about the admissibility or otherwise of hearsay evidence. However, on several occasions, the Presiding Member made comments such as "We're not going to get into this" and "I don't think that's relevant." This may have been an indication on the Tribunal's part that it did not consider the evidence to be reliable. The fact that the Tribunal did not formally reject hearsay evidence does not constitute an error of law because we are not persuaded that any "real injustice" resulted. 26 False or misleading evidence. The appellants claimed that Ms Stimpson gave false and misleading evidence to the Tribunal. Section 62(b) makes it an offence for a person, not having been sworn, to make a statement that the person knows to be false or misleading. However, even if Ms Stimpson did knowingly give false or misleading evidence, the Appeal Panel has no jurisdiction in relation to offences under the Act, nor does a contravention of s 62(b) amount to an error of law in the Tribunal's procedures or reasoning. Manner in which Tribunal questioned MW 27 Appellants' submissions. The appellants submitted that the Tribunal erred by not clearly explaining to MW the meaning of the questions they were asking him and, on other occasions, repeating the same questions in different ways. When either Alan or Michael Carew attempted to explain the question or prompt MW the Tribunal asked them not to interrupt. According to the appellants, in a strange situation people with dementia rely on their friends to stimulate their memory. They objected to the "formal" manner in which the Tribunal conducted the proceeding by not allowing them to interject. 28 Conclusion. Even if we accept the appellants' assertions about the manner in which the Tribunal questioned MW, those matters do not disclose any error of law. As we have said, the Tribunal is not bound by the rules of evidence and may inform itself on any matter in such manner as it thinks fit. The appellants did not point to any statutory breach or breach of procedural fairness in relation to the manner in which the Tribunal questioned MW. Cross-examination of witnesses 29 Appellants' submissions. The appellants submit that they were denied the opportunity to cross-examine Ms Helena Stimpson jnr. when she was giving evidence by telephone during the hearing. They allege that the Tribunal erred by not asking them if they wished to ask questions of the witnesses and by not giving them any opportunity to do so. The recording of the hearing confirms Mr Carew's claim that the Tribunal did not invite the appellants to ask questions of Ms Stimpson or any other witness. Not only were they not invited to do so, they were not given any practical opportunity to do so. We also note as an aside, that the appellants were not given an opportunity to give evidence of their own, except by answering specific questions put to them by the Tribunal. 30 Statutory right to cross-examine. We have found that both Alan and Michael Carew were parties to the guardianship and the financial management application. Consequently they have a statutory entitlement under s 59(b) to cross-examine any witness called by another party. We are satisfied that although Ms Stimpson was a party, rather than a witness called by a party, s 59(b) still applies. 31 Obligation of Tribunal? While it is clear that the appellants had a statutory right to cross-examine Ms Stimpson, and indeed any other witness, the issue is whether the Tribunal erred in the manner in which it conducted the hearing. The Act does not impose an express obligation on the Tribunal to invite a party to cross-examine witness or even to inform a party of their rights under s 59. That situation can be contrasted with s 102(1) of the Victorian Civil and Administrative Tribunal Act 1998 which provides that "The Tribunal must allow a party a reasonable opportunity … (b) to examine, cross-examine or re-examine witnesses". The authorities that we were able to find dealing with provisions similar to s 59(b) fall short of imposing on a decision-making body an obligation to afford a party an opportunity to cross examine witnesses in the absence of a specific request to do so. 32 Discussion of authorities. In Annetts v McCann (1990) 97 ALR 177 the High Court had to decide whether s 24 of the Coroners Act 1920 (WA) which provided that an interested person "may examine and cross-examine witnesses," excluded the common law right of procedural fairness to be heard in opposition to any potential finding which would prejudice the person's interests. The majority (Mason CJ, Deane and McHugh JJ) found that it did not. The majority found that the purpose of s 24 was to give "interested parties the absolute right to attend the inquest, to examine and cross-examine witnesses, and to be represented by counsel." Although we are not convinced that s 59(b) gives parties to Tribunal proceedings an "absolute right" to cross-examine witnesses, that provision may at least mean that parties must be given a meaningful right to cross examine in all the circumstances. (R v Cheprakov [1997] 2 NZLR 169) 33 There is no doubt that the Tribunal has a discretion to place some limits on the process. In Barrier Reef Broadcasting Pty Ltd v Minister for Post & Telecommunications (1978) 19 ALR 425 the High Court was interpreting s 22 of the Broadcasting and Television Act 1942-1976 (Cth) which provided that in a hearing by the Broadcasting Control Board, a person "may be represented by a barrister, solicitor or agent, who may… examine witnesses." The parties accepted that the right to "examine" also referred to cross examination. In that case a representative of one of the parties asked the Board for an opportunity to cross examine and was refused. The Board then made a recommendation to the Minister based on the hearing. The party sought a declaration from the High Court that the Board's recommendation was null and void. The party argued that the refusal of the request to cross examine was a denial of natural justice. Aicken J held (at 444) that it was. His Honour said at 445 that "The Board may have power to place some limits on cross-examination but that would not warrant the denial of cross-examination to one party, while permitting it to another. Moreover, it would be an unauthorized exercise of the discretion to deny to all parties a right of cross-examination." 34 Unlike the situation in the Barrier Reef case, the Tribunal did not expressly deny the Carews an opportunity to cross-examine. As we have said, in the absence of an express statutory requirement, the cases fall short of imposing a positive obligation on the decision making body to invite cross-examination. Some courts have addressed this situation by developing guidelines for dealing with litigants in person. For example the Family Court Guidelines state that "A judge should inform the litigant in person of the manner in which the trial is to proceed, the order of calling witnesses and the right which he or she has to cross examine the witnesses." While this is best practice when dealing with litigants in person, we are not persuaded that the failure of a decision maker to inform a party of their right to cross examine constitutes an error of law. Procedural fairness 35 Introduction. Given that the Tribunal has not breached s 59(b) of the Act, we go on to consider whether the Tribunal has breached the rules of procedural fairness. We do not deal specifically with the question of whether or not the rules of procedural fairness confer a right of cross examination in Tribunal proceedings. (That question is helpfully discussed by JRS Forbes in Justice in Tribunals, Federation Press, 2002, pp. 188-97.) The critical question is a broader one, that is whether the appellants had an adequate opportunity to respond to adverse material that is credible, relevant and significant. 36 The three circumstances which the Carews submit amounted to a breach of procedural fairness were as follows: (a) failure to allow the Carews to respond to or test the evidence Ms Stimpson gave on the telephone, (b) the provision of an amended application to the parties during the course of the hearing; and (c) failure to provide an opportunity to respond to the evidence of Dr Davies. 37 Summary of the hearing rule . Each of these grounds of appeal needs to be considered in the context of the relevant principles of the "hearing rule" which is one aspect of procedural fairness. In KA v Public Guardian & Ors [2004] NSWADTAP 25 at [9] the Tribunal provided the following summary: When making decisions, the Guardianship Tribunal must afford procedural fairness to any person whose "interests, rights or legitimate expectations" are affected. ( Kioa v West (1985) 159 CLR 550 at 584 per Mason J; See, also Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; Johns v Australian Securities Commission (1993) 178 CLR 408; Annetts v McCann (1990) 170 CLR 596.) The content of the hearing rule must be "appropriate and adapted to the circumstances of the particular case." ( Kioa v West (1985) 159 CLR 550 per Mason J at 585.) In the ordinary case, a person whose interests, rights or legitimate expectations are affected should be given an opportunity to deal with adverse information that is "credible, relevant and significant to the decision to be made." ( Kioa v West (1985) 159 CLR 550 per Brennan J at 629.) While all documents which contain adverse material do not necessarily have to be provided to a party, the substance or gravamen of that material should be disclosed. ( Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247; Re Pergamon Press Ltd [1971] CH 388; Ansell v Wells (1982) 43 ALR 41; Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs [2000] FCA 113 at 557.) 38 Did error materially affect the decision ? The final question is whether the error materially affected the decision and, if not, whether a remedy should be granted. Generally, courts are reluctant to examine the question of whether a breach of the hearing rule would have made a difference to the final decision since this involves an investigation into the merits of the decision and because the "assumption that a hearing could have made no difference comes close in itself to a denial of natural justice" (see Mark Aronson et al, Judicial Review of Administrative Action , 3rd edn (Sydney: Lawbook, 2004), 457). It is only where a court or appeal body can determine that observance of procedural fairness would not have affected the decision without judging the merits of the decision, that it is proper for the appeal body to refuse a remedy: Nguyen v Minister for Immigration Local Government and Ethnic Affairs (No2) (1996) 68 FCR 463 at 478-79 per Merkel J. 39 Questions to be answered. Consequently, we must answer the following questions in relation to each of the matters listed above: a) were the interests, rights or legitimate expectations of the appellants affected by the Tribunal's decision? b) if so, was there "credible, relevant and significant" material adverse to the appellants before the Tribunal? c) if so, was the substance of that material put to the appellants in circumstances where they had an adequate opportunity to respond to it? d) if the appellants did not have an adequate opportunity to respond, is it possible for the Appeal Panel to conclude that this had no bearing on the outcome of the hearing? 40 Appellants' interests, rights or legitimate expectations . The appellants had an interest in the outcome of the Tribunal's financial management decision as they held a power of attorney for MW. Powers of attorney are suspended while the estate of the principal is subject to management under the Protected Estates Act 1983 (s 76(5)). Accordingly, the appellants' interests were affected by the Tribunal's decision. The appellants also had an interest in the guardianship order as carers of MW. Despite MW residing in a nursing home, the appellants were still making decisions about his residential property and about his welfare. 41 Credible, relevant and significant adverse material. The Tribunal will not have breached the hearing rule unless the evidence in question was "adverse information that is credible, relevant and significant to the decision to be made." This part of the test was explained by Brennan J in Kioa v West (1985) 159 CLR 550 in the following terms at 628-629: A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise ( Kanda v Government of Malaya [1962] AC 322 at 337; Ridge v Baldwin [1964] AC 40, per Lord Morris at pp 113-4 De Verteuil v Knaggs [1918] AC 557 at 560, 561). The person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance. Administrative decision-making is not to be clogged by enquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made. Administrative decisions are not necessarily to be held invalid because the procedures of adversary litigation are not fully observed. As Lord Diplock observed in Bushell v Environment Secretary , supra, at p 97: "To 'overjudicialise' the inquiry by insisting on observance of the procedures of a court of justice which professional lawyers alone are competent to operate effectively in the interests of their clients would not be fair." Nevertheless, in the ordinary case where no problem of confidentiality arises, an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information. He will be neither consoled nor assured to be told that the prejudicial information was left out of account. 42 While Brennan J was concerned with an administrative decision made by a delegate of the relevant Minister, the decision made by the Tribunal was a judicial decision made under legislation which has many of the hallmarks of an adversarial system. Nevertheless, the principles enunciated by Brennan J are broadly relevant to the question of whether procedural fairness has been afforded in this case. Brennan J notes that the material in issue must be material that the decision maker "proposes to take into account". Despite this comment, Brennan J goes on to say that if the information is credible, relevant and significant to the decision, the person concerned will not be "consoled nor assured to be told that the prejudicial information was left out of account." 43 Each of the matters, which the Carews submit amounted to a breach of procedural fairness, will be considered in turn. Firstly Ms Simpson made certain allegations when giving oral evidence, including that MW's wallet and credit cards went missing on several occasions when he was out with Alan Carew. She also alleged that the appellants had taken money from MW's accounts to pay bills including rates, car repair bills, electricity and phone bills. Ms Stimpson said "Instead of paying the bills they went home and Mr Carew said he would do it the next day, then the money went missing." The Presiding Member then said "We're not going to get into this." Another member emphasised that losing a wallet is something which often happens to people with short term memory problems. 44 Secondly, the amended application given to the parties during the course of the hearing, had several hand written additions. The amendments which Ms Stimpson made included: - adding an allegation that MW "looked after himself until his fall" and a statement that she believed "both his tenant and a few friends kept an eye on him as did some church members" - adding a statement that "On the few occasions Mr [Alan] Carew spoke to me in 2005 he tried to convince me [MW] needed a financial manger. Before his fall [MW] told me on many occasions Mr [Alan] Carew demanded his power of attorney. Brother, Mr B Stimpson found Mr Carew living in the house and selling our mother's furniture and ornaments and showing agents through the house. He told my brother he couldn't do anything about it although house furnishings were left to us by our mother he could sell them if he wanted to as they were in the house." 45 The allegation that MW had looked after himself until his fall and that others had kept an eye on him implied that the appellants had exaggerated the extent of their care of MW. The allegation that Alan Carew lived in the house and was selling Ms Stimpson's mother's property was also potentially relevant material adverse to the appellants. Barry Stimpson corroborated the account given by his sister, saying that the Carews had stripped the house of all its contents. Paula Carew (Alan's daughter) added that Barry Stimpson had broken into MW's house and taken possessions without consent. The Presiding Member then said "I don't think that's relevant." We take this comment to be referring to the accusations and counter accusations made by the Carews and the Stimpsons in relation to removal of Helen Stimpson's possessions. 46 The exchanges between Tribunal members and the parties provide an example of a situation where the Tribunal's informal procedures lead to uncertainty about whether the rules of procedural fairness have been complied with. The evidence Ms Stimpson gave and the information in the amended application was potentially relevant to issues that the Tribunal had to determine. Those issues included the need for a financial management order under s 25G(b), given that the Carews at that time held powers of attorney. Their suitability to perform the role of MW's financial manager, either as power of attorney or under the Act, was also in issue. There was no indication that Ms Stimpson's evidence lacked credibility and it was adverse to the appellants. The only remaining question is whether the material was "of little significance to the decision which had to be made." 47 While the adverse material was potentially relevant and significant, our task in determining whether the Tribunal regarded it as important is made difficult by the lack of clarity in the reasons for decision. The Tribunal summarised the evidence of Ms Stimpson at p 7 of its decision, but made no comment on its relevance or significance. In the final two paragraphs of p 10, the Tribunal noted that it was concerned about the potential conflict of Alan Carew initiating action in the Supreme Court when he was a beneficiary under MW's will. The Tribunal also expressed concern about the Carews terminating the Managing Agency Agreement and the loss of rent that MW had experienced as a result of that termination. We simply do not know, on the basis of these reasons, whether the Tribunal considered the adverse information outlined above to be significant. If it was significant, then, as Brennan J said in Kioa v West, supra it is not sufficient for the decision maker to shut information that is significant out of his mind and to reach a decision without reference to it. 48 We are not satisfied, on the basis of the Tribunal's comments in the oral hearing and its reasons for decision, that the material was "of little significance to the decision which had to be made." The majority of that material, if accepted, raised serious doubts about the honesty and integrity of the Carews as MW's powers of attorney. Their character goes to the heart of their suitability to continue to act in that capacity and to the question of whether there is a need for another person to manage MW's financial affairs. Had the Tribunal said in its written reasons that the adverse evidence was considered and rejected, or that other more significant material had persuaded it to form a certain view, then it may not have been in breach of the hearing rule. 49 Inadequate opportunity to respond. We are satisfied from the recording of the hearing that the Carews were not given any opportunity to question either Ms or Mr Stimpson or to respond to their evidence given at the hearing or the additional material in the amended application. The need to allow parties to guardianship and financial management applications to ask questions and, if necessary, to have the proceedings adjourned to address adverse material was highlighted by Young J in EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501, 28 May 1999. The Supreme Court said at [43], that . . . the Tribunal must give the defendant or applicant the chance of contradicting material which is put before it and if need be, may have to grant an adjournment for that to be done. In a tribunal such as the present where lawyers are only allowed with the permission of the tribunal, a tribunal may indeed have a duty to point out to an applicant or defendant that if he or she does consider that an adjournment is needed, they have a right to ask for it. It may not be sufficient in any particular case to just say to an unrepresented person at the end of evidence which has been given by telephone (or by a witness personally present) against them for the first time, of which they had no notice, that they can ask questions over the telephone of the witness if they want to. 50 Young J found that in the circumstances of that case, the Tribunal did not deny any of the parties natural justice. Unlike the situation in EMG v Guardianship and Administration Board of Victoria , the Tribunal in this case did not give the Carews any opportunity to test Ms Stimpson's evidence or the material in the amended application. 51 Whether failure to observe procedural fairness materially affected the decision. The Tribunal referred in its reasons to Ms Stimpson's allegations that the Carews were selling her mother's property and to her concerns about the conduct of the Carews acting as powers of attorney. However, the Tribunal appeared to base its decision to make a financial management order on the potential conflict of interest which arose as a result of the Supreme Court proceedings involving MW and the Stimpsons. The Tribunal did not clearly explain why it appointed the Public Guardian to be MW's guardian, but this decision also appeared to be based on the potential for conflict of interest to arise. Despite the fact that the reasons focused on the potential conflict of interest, it is not possible for the Appeal Panel to conclude that the Tribunal's failure to observe procedural fairness had no bearing on the outcome of the hearing. As Merkel J said in similar circumstances, "As no opportunity was afforded to the claimants to put their case … it must be a matter of speculation as to what may have occurred had that opportunity been afforded": Nguyen v Minister for Immigration Local Government and Ethnic Affairs (No2) (1996) 68 FCR 463 at 478. 52 Conclusion. The Tribunal breached the hearing rule by failing to give the Carews an adequate opportunity to respond to the adverse information raised by Ms Stimpson which we have found to be credible, relevant and potentially significant to the decision. 53 Medical report. In relation to the medical report of Dr Davies, the appellants objected to the fact that the Tribunal did not require him to give oral evidence but accepted his written opinion as to MW's state of health. The rule against hearsay prevents the Tribunal from receiving evidence in the form of a written statement when the author does not give oral evidence. However, as we have said, the Tribunal is not bound by the rules of evidence. Furthermore, s 59(d) and (e) provides that a party to proceedings may produce documents and exhibits to the Tribunal and adduce, in writing, matters relevant to the proceedings. Neither of these provisions requires that written evidence be accompanied by sworn oral evidence from the author in order to be accepted. Consequently the Tribunal did not make an error of law by accepting Dr Davies' report without calling him to give oral evidence. The next question is whether the Tribunal's failure to give the Carews an opportunity to test Dr Davies' evidence amounts to a breach of the hearing rule. Given that there was no dispute that MW was incapable of managing his financial affairs, any objection to the medical evidence is not a ground of appeal that could possibly have led the Tribunal to come to a different conclusion on the question of capacity. Bias of the Guardianship Tribunal 54 Appellants' submissions. The appellants submitted that the presiding member of the Guardianship Tribunal was biased because he assumed that the appellants were using MW's money to pay for the services of counsel to represent him in the Tribunal proceedings. In fact, they contend that those services were being paid for by a third party. 55 Conclusion. The kind of bias the appellants are alleging is not bias through interest but bias "by reason of some pre-determination [the presiding member] has arrived at in the course of the case": Dickason v Edwards (1910) 10 CLR 243 at 260 per Isaacs J; see also Re Watson; ex parte Armstrong (1976) 136 CLR 248 at 258 per Barwick CJ, Gibbs, Stephen and Mason JJ. The test of the appearance of bias is "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": Johnson v Johnson (2000) 174 ALR 655 at 658 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. 56 In Barrier Reef Broadcasting Pty Ltd v Minister for Post & Telecommunications (1978) 19 ALR 425, a party submitted that the Board's refusal to allow it to cross-examine on an issue constituted "bias" in that it "indicated that the Board had already made up its mind upon [the point on which cross examination was refused]" (at 442-43). On the question of bias, Aicken J held that on the facts a reasonable person could have concluded that the Board had made up its mind on the issue in question and was not prepared to have the facts further investigated (at 446). 57 We are not satisfied in this case that a fair-minded observer would reasonably apprehend that the presiding member did not bring an impartial and unprejudiced mind to the issues for determination. Nevertheless, it is not surprising that the appellants felt that the Tribunal had closed its mind to certain issues given that the Tribunal did not seek their views on those matters nor allow them to question witnesses. Statutory requirements 58 Views of MW. The appellants maintained that the Tribunal failed to have regard to the views of Alan and Michael Carew as MW's carer. Section 14(2) of the Act provides that, in considering whether or not to make a guardianship order, the Tribunal shall have regard to certain matters including the views (if any) of the person who has the care of the subject person. The Tribunal's consideration of the matters in s 14(2) arises once the Tribunal has decided that a person meets the statutory definition of "a person in need of a guardian." Having made that finding, it must undertake the second step in the process of determining whether to appoint a guardian. The Tribunal must consider each of the matters set out in s 14(2) before exercising its discretion. (See IF v IG & Ors [2004] NSWADTAP 3 [22]-[31].) 59 We have already decided that Alan and Michael Carew did have the care of MW within the meaning of s 3D. The question is whether the Tribunal considered their views when exercising its discretion to appoint the Public Guardian. The presiding member asked Michael and Alan Carew whether they thought the Public Guardian should be appointed, noting that the Public Guardian is required to consult with people such as MW's family and friends. Michael Carew said he thought this would be all right and Alan said he had nothing to add to the general discussion. Given that neither Michael nor Alan Carew opposed the appointment of the Public Guardian during the hearing, we cannot agree with them that the Tribunal did not take their views into account. 60 Alternative ways in which services could be provided. Another factor that the Tribunal must take into account when deciding whether or not to make a guardianship order is "the practicability of services being provided to the person without the need for the making of such an order": s 14(2)(d). The Tribunal's reasons for decision indicate that, in the course of considering whether or not to make a guardianship order, it considered the existing arrangements for the care of MW and the basis on which decisions were being made about services being provided to him. The Tribunal also heard evidence from various people concerned in the provision of services to MW. We are satisfied that the Tribunal did have regard to the practicability of services being provided to MW without the need to make a guardianship order, even though it did not expressly state that it had taken those factors into account in its written reasons. 61 Failure to recognise the importance of preserving family relationships and cultural and linguistic environment of MW. Similarly s 14(2)(b) and (c) require the Tribunal to take into account the importance of preserving the person's existing family relationships and cultural and linguistic environments. That requirement is echoed more generally in s 4(e) which requires the Tribunal, when exercising any function under the Act, to observe the following principle: the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised 62 According to the appellants the Tribunal failed to take into account the matters in s 14(2)(b) and (c) and to observe the principle in s 4(e). 63 Conclusion. The requirement in s 4(e) is similar to that in s 14(2)(b) and (c). The Tribunal is required to take that principle or those factors into account and give them weight as fundamental elements in coming to a decision: Re Toohey and Another; Ex parte Meneling Station Pty Ltd and Ors (1982) 44 ALR 62 at 67. (See also KV v Protective & Ors; KW & Ors v KV & Ors (No.2) [2004] NSWADTAP 48 at [35]-[40].) 64 The appellants did not point to any evidence about MW's family relationships or his cultural and linguistic environment which may have been relevant for the Tribunal to take into account. The Carews were not related to MW nor, as far as we are aware, do they share the same cultural or linguistic heritage. The appellants pointed to the definition of "person responsible" in s 3E as including a "close friend or relative." However that provision relates to the people who are eligible to give consent for another person to have medical and dental treatment. It is not relevant to the facts of this case. While the Carews are close friends of MW the Tribunal did not make any error of law in the way it applied s 14(2)(b) and (c) or the principle in s 4(e). Other grounds not amounting to questions of law 65 The appellants raised several other grounds of appeal which constitute a general attack on the merits of the Tribunal's decision and which do not amount to questions of law. These include the assertions that: - the nursing home requires directions from the Carews as to the ongoing care of MW; - the appointment of the Protective Commissioner has meant that access to MW's funds for his ongoing health care is denied or delayed; - the Tribunal relied on MW's replies when it had determined that he was suffering from dementia; and - the appointment of the Public Guardian is counter-productive to the personal care afforded by Paula Carew. 66 None of these grounds amount to an error of law. Conclusion 67 We have found that the Tribunal breached the hearing rule by failing to give the Carews an adequate opportunity to respond to the adverse evidence of Mr and Ms Stimpson and to the adverse material in the amended application. Having identified fundamental errors of law, the appropriate order is to set aside both the financial management and the guardianship orders made by the Tribunal. The next question is whether we should extend the appeal to the merits of the decision or remit the matter to be heard and decided again by the Tribunal. 68 If the Appeal Panel extends the appeal to the merits of the decision, we would need to have another hearing to obtain evidence from all the parties and witnesses. That is an exercise which is more appropriate for the Tribunal to perform as it is a specialist Tribunal with the relevant skills and expertise in this area. Consequently, we have decided to remit the matter to the Tribunal. Their determination should include the hearing of evidence from all parties and witnesses to the guardianship and the financial management application. The appellants should understand that the Tribunal may or may not come to the same decision again. That will depend on all the evidence and whether it is satisfied, that the orders should be made. 69 One effect of setting aside the decision is that the powers of attorney held by Alan and Michael Carew are no longer suspended. Although this theoretically means that Alan and Michael Carew could make financial decisions on behalf of MW, we recommend that they do not do so until this matter has been resolved. Orders The financial management order of the Guardianship Tribunal made on 23 July 2004 in relation to MW is set aside. The limited guardianship order of the Guardianship Tribunal made on 23 July 2004 in relation to MW is set aside. Both matters are remitted to the Guardianship Tribunal to be heard and decided again with the hearing of further evidence in accordance with these reasons.

Carew v Protective Commissioner and Ors

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