CZ v Public Guardian & ors [2001] FCA 828 | Case summary

REASONS FOR DECISION 1 The appellant, whom we will refer to in these reasons by the pseudonym 'CZ', appeals against the decision of the Guardianship Tribunal not to appoint him as his mother's guardian and to appoint his sister-in-law to manage her estate. CZ's mother, DB, the subject of the Guardianship Tribunal's decision, is a 79-year-old woman who lives at home with CZ. She is physically frail and suffers from dementia. 2 In a decision made on 6 September 2007, the Guardianship Tribunal made the following orders: first, that DB's estate be subject to a financial management order under the provisions of the Guardianship Act 1987; second, that CZ's sister-in-law be appointed to manage the estate; third, that the application for a guardianship order in respect of DB be dismissed, and; fourth, that CZ's appointment as his mother's enduring guardian, be revoked. 3 CZ appeals all decisions except the revocation of his appointment as enduring guardian. One of his brothers, the fourth respondent, DA opposes the appeal. 4 In these proceedings CZ was legally represented. DA appeared in person. The first, second and third respondents, respectively the Public Guardian, the Protective Commissioner and the applicant in the proceedings before the Guardianship Tribunal, did not enter an appearance. DB attended the hearing but made no submissions. Ms Esther Cho appeared for the Guardianship Tribunal. 5 All references in these reasons to 'the Tribunal' are to the NSW Guardianship Tribunal. Background 6 The initiating application to the Guardianship Tribunal for guardianship and financial management orders was triggered by DB's admission to hospital in May 2007 following a fall. At that time DB had been residing at home with CZ. The application was made by a hospital social worker who had concerns with the standard of care provided to DB and her decision to leave hospital against medical advice. In hospital, DB was assessed as being in need of 24-hour care on the basis of a history of falls and chronic illnesses. 7 After her return home a further assessment was conducted, this time by the Aged Care Assessment Team (ACAT). The team concluded that while DB required a high level of support, 24 - hour supervision - as had been recommended by the Hospital - was not required. The team recommended a high level Community Aged Care Package ('the care package') that involved among other things, 21 hours of care per week. 8 Prior to DB being admitted to hospital, it had been reported that she had resisted offers of external care and support. DA claimed that CZ actively discouraged their mother from accepting such care. That is disputed. At the hearing of the initiating application before the Tribunal, the package that had been recommended by the ACAT team was largely in place, and it was reported that CZ and DB had fully cooperated with its introduction. Jurisdiction 9 The jurisdiction of an Appeal Panel of the Administrative Decisions Tribunal to hear appeals from decisions of the Guardianship Tribunal is derived from s 67A of the Guardianship Act 1987 and s 118A of the Administrative Decisions Tribunal Act 1998 ('the Tribunal Act'). 10 Not all decisions made by the Guardianship Tribunal can be the subject of an appeal to the Administrative Decisions Tribunal, only those listed at s 67A(1) of the Guardianship Act. Two of the three decisions the subject of this appeal fall squarely within s 67A(1), namely the decision to make a financial management order in respect of DB's estate (s 25E of the Guardianship Act) and the decision not to make a guardianship order (s 14 of the Guardianship Act). The third decision, namely the decision to appoint DB's daughter-in -law as manager of the estate, was made under s 25M of the Guardianship Act and is not one of the decisions listed under s 67A(1) of that Act. The Appeal Panel (differently constituted) in SH v Protective Commissioner and Ors [2006] NSWADTAP 4 examined whether the Administrative Decisions Tribunal had jurisdiction to determine an appeal brought in respect of a decision made under s 25M. Applying a purposive rather than a literal construction to s 67A(1), and having regard to the Guardianship Act as a whole, the Appeal Panel concluded at [13] that it had jurisdiction to hear an appeal brought in respect of a decision made under s 25M. Adopting that approach, we conclude that there is no bar to the appeal brought in respect of the decision to appoint DB's daughter-in-law to manage the estate. 11 Section 118B of the Tribunal Act provides that an external appeal, which includes an appeal in relation to a decision listed under s 67A of the Guardianship Act, may be made, as of right, on any question of law and, with the leave of the Appeal Panel, on any other grounds. Once an Appeal Panel has determined the appeal it may make 'such orders as it thinks appropriate in the light of its decision' (s 118C(1) of the Tribunal Act). Grounds of Appeal 12 The Amended Notice of Appeal identified the 'question of law' giving rise to the Appeal in the following terms: 'The Guardianship Tribunal disregarded sections 14(2)(a)(i), (iii), (b) and (d) of the [Guardianship Act] to the facts found. (Section 14(2)(a)(ii) and (c) were not relevant.)' 13 Under the heading 'Other grounds [of appeal]' CZ wrote, 'The Guardianship Tribunal found a non-existent conflict of interest on the part of [CZ] on which it based its decision to appoint a financial manager but disregarded the fact that [CZ and another brother] provide substantial support to [DB] including the payment of her care package'. 14 In oral submissions, solicitor for CZ, Mr Carr, clarified that leave was sought for the appeal to be brought in respect of the merits of the decision. (i) Financial management order 15 The decision to commit DB's estate to financial management was attacked on three main bases. First, it was asserted that the Tribunal erred in finding that a 'conflict of interest' existed between CZ and his mother. Second, it was argued that the Tribunal failed to properly consider whether there was a need for a financial order to be made given that CZ held a power of attorney. Third, it was submitted that the Tribunal failed to properly consider the practical implications of appointing as manager, a person who did not have the day-to-day responsibility for the care of DB and, furthermore, lived outside the state. 16 (i) Conflict of interest finding It was argued for CZ that this finding was 'extraordinary' and had the Tribunal given proper regard to all relevant evidence it would have concluded that there was no 'conflict of interest' but rather CZ and DB shared 'interests in common'. It was asserted that the finding constituted an error of law. 17 Before considering CZ's submissions further it is useful to set out the factual background to the impugned finding. The following summary is taken from the Tribunal's Reasons for Decisions at pp 11-13: In 2003, DB signed an enduring power of attorney appointing CZ. There was no evidence that DB lacked capacity at that time. DB owns a residential property, estimated to be worth $2.5 million ('the family home') where she and CZ currently reside. There is a mortgage of about $300,000 over the family home, described by the Tribunal as 'primarily a debt in relation to his [CZ's] business'. In addition, there is a caveat over that property securing a debt of $4m purportedly owed to CZ. In a statutory declaration dated 30 October 2006, DB declared that, (i) CZ had worked in the family business for many years drawing a modest wage; (ii) she and her husband had always intended to reward CZ for his contribution to the family business and to the building of the family home; (iii) she and CZ had agreed that the value of her indebtedness to him was $4m; (iv) she consented to CZ securing his 'indebtedness' by registering a caveat over the family home. A month before that statutory declaration was made, an assessment of DB was conducted by a registered nurse who concluded that DB exhibited significant 'short and long term memory deficits'. In addition to the family property, DB holds an interest with CZ in a block of land on the North Coast of NSW. CZ receives the age pension and has a small amount deposited in a savings account. 18 The Tribunal concluded that as attorney, CZ faced 'two issues of conflict of interest': the mortgage over the family home and 'more particularly' the $4m debt secured by a caveat on the property. It wrote (at p 14): At present, these conflicts of interest may not be having any practical impact. However, they may have great practical impact as events unfold for [DB] over the years. In these circumstances, the Tribunal felt that [DB]'s interests called for a financial management order. … [I]t seemed to the Tribunal that a financial management order should be in place at least so as to avoid [CZ] being in any conflict of interest in relation to any future transactions in relation to his mother's property. 19 It was argued for CZ that the Tribunal had allowed itself to be swayed by the many unfounded and scurrilous allegations made by DA. It was contended that the Tribunal failed to give proper weight to the evidence of the financial support CZ had provided to his parents over an extended period, necessitated by a history of failed off-shore investments and involvement in protracted litigation; the 'uncontroversial evidence' that through his business acumen, CZ had 'held the family business together' and facilitated the building of the family home; the evidence that he had not moved to enforce the debt against his mother and had undertaken not to do so while she is alive; the evidence that he has made voluntary contributions towards his mother's care package. 20 CZ contends that the impugned finding raises a 'question of law'. While the formulation 'question of law' is wider than 'error of law' (Attorney General for the State of New South Wales v X (2000) 49 NSWLR 653 at 677), it is well established that an assertion that a finding of fact by the primary decision maker is against the weight of evidence does not amount to a question of law. (See Haines v Leves (1987) 8 NSWLR 442; Azzopardi v Tasman UED Industries Ltd (1985) 4 NSWLR 149; Attorney General for the State of New South Wales v X .) While a finding said to be against the weight of evidence does not disclose an error of law, there are nonetheless a number of qualifications to this rule. These include where evidence critical to an issue in the case has been ignored (Mifsud v Campbell (1991) 21 NSWLR 725; Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473 at 513); or where the decision made was 'manifestly unreasonable' (Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 41). From CZ's submissions it would seem that these are the real questions raised by this ground of appeal, notwithstanding that they are expressed to be an attack on a finding asserted to be against the weight of evidence. 21 The Tribunal set out in some detail CZ's account of the history to the caveat and mortgage over the family home. It recorded evidence favourable to CZ including that there was some evidence to corroborate his claim that both parents had acknowledged their indebtedness to him; that consistent with his undertaking, he had not attempted to realise the purported $4m debt; and, that over an extended period he had contributed towards his mother's expenses. 22 The Tribunal made no determination about the veracity of the claims and counterclaims concerning the caveat and the mortgage. It did not, as CZ's submissions suggest, find that he had preferred his interests over those of his mother or subjected her to a financial detriment. It confined itself to the question of whether the structure of the financial arrangements made in relation to the family home gave rise to a potential conflict between CZ's pecuniary interests and those of his mother, and concluded that it did. 23 In the process of reaching that finding the Tribunal scrutinised the available evidence. It considered the evidence favourable to CZ and concluded that it was not determinative to the question of whether a conflict of interest existed between CZ and his mother. We do not agree that the Tribunal failed to have regard to any critical evidence or, that its ultimate finding could be described as 'manifestly unreasonable'. The finding made was one available to the Tribunal on the evidence before it. No question of law is raised. 24 (ii) Failure to consider need for and best interests CZ contends that the Tribunal erred by making a financial management order in circumstances where the need for such an order had not been established. 25 It was contended for CZ that the Tribunal failed to take into account the evidence that he had been appointed as his mother's attorney at a time when there was no suggestion that she lacked capacity. CZ also submitted that the Tribunal failed to take into account the absence of evidence of any impropriety on his part in his dealings with his mother's affairs, either before or after that appointment. Furthermore it was argued that the Tribunal failed to address whether there was a need for a financial management order given the size of his mother's estate which, on his account, consisted of nothing more than a modest fortnightly pension and a small cash deposit held in a savings account. 26 The Tribunal's power to make a financial management order is contained in Division 1 of Part 3A of the Guardianship Act. Section 25E(1) provides that the Tribunal may order that the estate of a person be subject to management under the Protected Estates Act 1983. Section 25G sets out the grounds for making a financial order and provides that the Tribunal may make a financial management order in respect of a person only if the Tribunal has considered the person's capability to manage his or her own affairs and is satisfied that: (a) the person is not capable of managing those affairs, and (b) there is a need for another person to manage those affairs on the person's behalf, and (c) it is in the person's best interests that the order be made. 27 As s 25G makes plain, the Tribunal's power to make a financial management order can only be enlivened if first, it has considered the subject person's capability to manage his or her own affairs; and second, it is satisfied of all matters listed in paragraphs (a), (b) and (c). It is not in issue that DB was incapable of managing her affairs. What is in issue is whether the Tribunal properly applied the facts as found to s 25G (b) and (c). 28 While not expressly stated, it is apparent from its Reasons for Decision that the Tribunal understood that by making a financial management order the power of attorney held by CZ would be suspended for the term of that order: s 76(5) of the Protected Estates Act. 29 The Tribunal considered whether a financial management order should be made in circumstances where a power of attorney had been granted and 'the attorney has a conflict of interest' (Reasons for Decision at p 14). It acknowledged that CZ's appointment as attorney did not mandate the making of a financial management order notwithstanding its earlier finding that a potential conflict of interest existed, citing in support the comments of Young J in Re R [2000] NSWSC 886 at [47]: [T]o allow a person with conflicts of interest to continue [exercising a power of attorney] is something that still has to be watched carefully. If it has to be watched carefully then it seems to me that it is just a question of fact and degree as to whether in all the circumstances it is in the best interests of the incapable person that that situation continue. 30 Applying that analysis the Tribunal concluded (at p 14). At present, these conflicts of interest may not be having any practical impact. However, they may have great practical impact as events unfold for [DB] over the years. In these circumstances, the Tribunal felt that [DB's] interests called for a financial management order. 31 The Tribunal considered the countervailing factors that might weigh against disturbing the power of attorney. It noted the 'very considerable evidence of a very close relationship between [DB] and [CZ] and of her longstanding confidence in him in relation to financial and other issues' and her 'great trust in her son' (at pp 11, 15). It made no adverse findings about CZ's character. It is apparent from its reasons that in analysing whether the need for/best interests criteria had been established, the Tribunal gave significant weight to the nature of CZ and DB's respective pecuniary interests and their interrelationship. 32 The Tribunal did not expressly address whether it considered the size of DB's estate relevant to its determination. In its Reasons for Decision (at p 14), the Tribunal alluded to the possibility that the debt might be challenged at some later date. From this it can be inferred that the Tribunal did not endorse CZ's contention that it was 'uncontroversial' that DB's estate consisted of nothing more than a pension and a small saving account. That issue raised complex questions of fact and law and was not one the Tribunal was required to finally determine in addressing the need for/best interest criteria. 33 The Tribunal, in deciding to make a financial management order, had regard to the matters it was directed to take into account by s 25E(3). We do not accept that the Tribunal misapplied s 25E. 34 (iii) Appointment of financial manager CZ submitted that the Tribunal's earlier error was compounded by its decision to appoint DB's daughter-in-law as manager of her estate. As we understand it CZ does not contend that his sister-in-law is an unsuitable manager but rather that he would be a more suitable appointment. 35 Under the heading, 'Who should be financial manager?', the Tribunal stated: The Tribunal needed to consider whether there was a suitable private individual to appoint as financial manager for [DB] or whether the Tribunal should appoint the Protective Commissioner. The Administrative Decisions Tribunal has said that the Guardianship Tribunal first needs to see if there is a suitable private individual. Only if there is no suitable individual should the Tribunal appoint the Protective Commissioner (SH v Protective Commissioner [2006] ADT 22). In considering this issue, the Tribunal needed to observe the principles in Section 4 of the Guardianship Act including that the welfare and interests of [DB] should be given paramount consideration. The Tribunal needed to consider all relevant circumstances and noted the checklist provided by Justice Kirby in Holt v Protective Commissioner (1993) 31 NSWLR 227. In the hearing, [DB] recalled appointing [CZ] under a Power of Attorney. If she needed someone to make life decisions, it would be [CZ] she would want. She would like to leave her house to [CZ]. She thought she had made provision for this in her will. Whilst [DB] obviously has great trust in [CZ], the nature and extent of his conflict of interest meant that the Tribunal did not feel that it should appoint him as financial manager. 36 The Tribunal went on to record the disparate views of family members and after canvassing various options, concluded that DB's daughter-in-law was the most appropriate person to take on this role. It gave these reasons for that decision: Ultimately, the Tribunal decided to appoint [DB's daughter-in-law] as financial manager. She has shown obvious concern for [DB] by the amount of time that she spent with her in recent times and this time with [DB] would assist her communication with [DB] and understanding of evolving financial needs. There may be some tension for a family member as financial manager in dealing with decisions that impact on the interests of [CZ] as well as [DB]. However, [DB's daughter-in-law] felt that she could deal with these issues. From the overall evidence before it, the Tribunal did not feel that it was necessary or otherwise in [DB]'s interests for a financial manager to undertake a retrospective review of her financial situation. The Tribunal felt that, with the direction of the Protective Commissioner, [DB's daughter-in -law] will be able to deal with the issues that may arise in a way that promotes harmony for [DB] and otherwise promotes her interests. If this did not prove to be the case, then the matter could be brought back to the Tribunal. To have appointed the Protective Commissioner would have caused upset for and around [CZ]. The Tribunal did not see this degree of intrusion as in her interests. 37 The Guardianship Act provides no express guidance on the factors to be taken into account in making an appointment under s 25M. As the Tribunal correctly pointed out in exercising this power it was required to observe the principles enshrined in s 4 of the Guardianship Act, namely, (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. 38 Adopting broadly the same analysis it had applied to the determination of the threshold question of whether a financial management order should be made, the Tribunal decided not to appoint CZ as manager of his mother's estate (Reasons for Decision, p 15). 39 Having made that decision, the Tribunal went on to consider whether another suitable person was available to take on that role. In undertaking that task, it expressly considered the principles enshrined in s 4 of the Guardianship Act, specifically, paragraphs (d), (e) and (g). It did not, as CZ's submissions suggest, ignore the practical implications of appointing a manager who did not reside in NSW, referring to this in its Reasons for Decision (at p 14). 40 The Tribunal had regard to all relevant considerations in the exercise of its discretion to appoint a manager under s 25M. It was a matter for the Tribunal to determine what weight to afford to these considerations and how they ought be balanced. In our view the Tribunal did not misapply s 25M of the Guardianship Act and no error of law is disclosed. (ii) Guardianship order 41 It was submitted for CZ that the Tribunal, in deciding not to appoint a guardian in respect of his mother, misapplied s 14 of the Guardianship Act. He does not challenge the Tribunal's finding that his mother is 'a person in need of a guardian' as defined by s 3(2) of the Guardianship Act. He concedes that the Tribunal identified the correct legal test but contends that it erred by failing to have regard to, or proper regard to, the evidence that: DB had repeatedly stated that she wished CZ to be appointed as her guardian; He was both willing and able to take on that role; Existing family relationships would not be harmed by appointing him to that role. 42 It was contended that the impugned conflict of interest finding infected the Tribunal's decision not to make a guardianship order. 43 CZ also argued that as a consequence of the Tribunal's decision he had been left with all of the responsibilities of a guardian but none of the powers necessary to carry out those responsibilities. 44 Before considering these arguments it is useful to set out s 14 of the Guardianship Act in full: (1) If, after conducting a hearing into any application made to it for a guardianship order in respect of a person, the Tribunal is satisfied that the person is a person in need of a guardian, it may make a guardianship order in respect of the person. (2) In considering whether or not to make a guardianship order in respect of a person, the Tribunal shall have regard to: (a) the views (if any) of: (i) the person, and (ii) the person's spouse, if any, if the relationship between the person and the spouse is close and continuing, and (iii) the person, if any, who has care of the person, (b) the importance of preserving the person's existing family relationships, (c) the importance of preserving the person's particular cultural and linguistic environments, and (d) the practicability of services being provided to the person without the need for the making of such an order. 45 The Appeal Panel (differently constituted) in IF v IG & Ors [2004] NSWADTAP 3 at [26] described the approach the Tribunal should take to applying s 14(2) in this way: 26. [T]he Guardianship Tribunal is required to exercise a structured discretion. The Guardianship Tribunal must consider all of the matters set out in s 14(2) before exercising its discretion. The use of the words "shall have regard to" in s 14(2) is a clear indication of the legislative intent that the Guardianship Tribunal is obliged to consider all of the matters set out in that sub-section before exercising its discretionary power. Those matters have no hierarchy or weighting. Each is a mandatory consideration. The Guardianship Tribunal must determine in every case whether one or more of those considerations will be given greater weight than others. Whilst each is a mandatory consideration, in some cases there may be no evidence of one or more of them. In such circumstances it may be prudent for the Guardianship Tribunal to record that fact. 27 Whilst the Guardianship Tribunal must consider all of the matters in s 14(2), it is not limited to considering those matters before determining whether to make a guardianship order. The Guardianship Tribunal is clearly entitled to identify and be influenced by relevant matters other than those set out in s 14(2) when making its decision. 28 In many cases it will be necessary for the Guardianship Tribunal to undertake a balancing exercise for its consideration of some of the matters in s 14(2), as well as any other relevant matters, may cause it to believe that a guardianship order should be made, whilst consideration of other matters may cause it to hold a contrary opinion. When undertaking such a balancing exercise the Guardianship Tribunal may be guided by one or more of the general principles that underpin the legislation which are set out in s 4 of the Guardianship Act 1987. 46 Section 17 of the Act provides that a person shall not be appointed as the guardian of a person under guardianship unless the Tribunal is satisfied that: (a) the personality of the proposed guardian is generally compatible with that of the person under guardianship, (b) there is no undue conflict between the interests (particularly, the financial interests) of the proposed guardian and those of the person under guardianship, and (c) the proposed guardian is both willing and able to exercise the functions conferred or imposed by the proposed guardianship order. 47 Our decision The alleged question of law raised by the 'conflict of interest' finding has been dealt with above. It therefore falls to be determined whether the Tribunal misapplied s 14 of the Guardianship Act. 48 In considering whether or not to make a guardianship order, the Tribunal considered in tandem the question of who might be a suitable guardian. While that question is discrete and separate to the threshold question of whether a guardianship order should be made, and logically can only be made after that issue has been resolved, there is no bar to the Tribunal having regard to the availability of suitable guardians in evaluating whether a guardianship order should be made. The matters listed in s 14(2) are not exhaustive and while the Tribunal must have regard to them it may also have regard to any other relevant matters. (See IF v IG & Ors at [27]; Pfizer Pty Ltd v Birkett [2001] FCA 828 at [40]; R v Hunt; Ex Parte Sean Investments Pty Ltd (1979) 180 CLR 322 at p 329). 49 The Tribunal recorded that DB was agreeable to a guardianship order being made but only if CZ was appointed as the guardian. It also noted that CZ was prepared to accept that appointment and believed it to be in his mother's best interests that this occur. 50 The Tribunal elected not to consider these views in a vacuum but in the context of whether DB's wishes would be realised if a guardianship order was made. It stated: [CZ] has a long history of devotion to his mother. However, the Tribunal also had some concern about the appropriateness of appointing him as guardian in view of: His not having seen it as important to tell Mr Carr [DB's solicitor] about his mother's recently diagnosed cognitive impairment when she signed the $4 million acknowledgment of debt in his favour. See below. The inconsistency between what Ms Finlay [the third respondent] reported having told him and what he told Mr Carr prior to the Appointment of Enduring Guardian document being drawn up. Also, not telling Mr Carr of his mother's cognitive impairment at this time. These two incidents suggested that [CZ] has some difficulty coming to grips with his mother's condition, the implications of it and advice from service providers. The Tribunal does not state this as a personal criticism. Family members are often on a challenging learning curve when a parent develops dementia. 51 As directed by s 14(2)(c), the Tribunal considered (at p 9) the 'importance of preserving [CZ's] existing family relationships' and concluded that family relationships were unlikely to be affected whether or not a guardianship order was made. 52 It went on to consider whether there was any family member other than CZwho could take on the role of guardian and concluded that there was not. It noted that DB would regard the Public Guardian option as 'an intrusion'. 53 Had the Tribunal left the matter there in our view it would have fallen into error by failing to 'have regard to' all matters listed at s 14(2) namely the practicability of services being provided to DB in the absence of a guardianship order being made (s 14(2)(d)). But as made clear from its reasons the Tribunal carefully considered this issue. It noted (at p 9) that in the absence of a guardianship order '[CZ] would be "person responsible" [under s33A of the Guardianship Act] and therefore the person to make decisions about medical and dental treatment that [DB] does not understand'. (See Part 5, Division 1 and 2 of the Guardianship Act). The Tribunal considered (at p 9) the views of those service providers who had misgivings that the services put in place for DB at the might not continue past the Tribunal hearing if a guardian was not appointed. It concluded (at p 10) that 'despite past difficulties, service provision is currently working' and was 'reasonably confident' that this would continue. 54 The Tribunal concluded (at p 10): [CZ's] interests [are] best served by leaving decisions about services to be informally worked through between service providers, [DB] and her carer [CZ]. Despite past difficulties, service provision is currently working and the Tribunal is reasonably confident that it will continue to be so. The Tribunal saw the usual informal liaison between carer, the person and service provider as more likely to harmoniously achieve the right balance in service provision than if someone has the formal decision-making authority of guardianship. 55 The Tribunal had regard to all factors listed in s 14(2) together with the sometimes competing principles enshrined in s 4 of the Guardianship Act. That it did not make a decision in accordance with the views of DB and CZ does not, as CZ's submissions imply, indicate that they were overlooked. There is nothing in the language of s 14(2) to indicate that the views of the subject person and their carer are, in effect, determinative or to be afforded greater weight than the other matters listed in s 14(2). The weight to be given to those views was a matter for the Tribunal to determine. In our view no error of law is disclosed in the Tribunal's application of s 14(2). Any other grounds? 56 Section 118B(1) of the ADT Act provides that an appeal from a decision of the Guardianship Tribunal may be made as of right on any question of law or by leave of the Appeal Panel on any other grounds. In JT and Anor v Protective Commissioner & Ors [2004] NSWADTAP 13, the Appeal Panel (differently constituted) discussed (at [32]) the factors to be taken into account in determining whether the discretion to grant leave should be exercised: Having decided that the Tribunal made no error of law, the Appeal Panel's task is to determine whether leave should be given to appeal against the merits of the Tribunal's decision. The ADT Act does not contain any guidance on the relevant matters to be taken into account in determining whether leave should be granted. The Supreme Court has provided some guidance on this question in the cases of K v K [2000] NSWSC 1052; S v S [2001] NSWSC 146 and Re R [2000] NSWSC 886. Those cases interpreted s 67 of Guardianship Act 1987 which is the equivalent provision to s 67A in relation to appeals from Tribunal decisions to the Supreme Court. In K v K, Young J observed at [10] that "it has never been clearly decided what the circumstances are that should lead the Court to grant leave to appeal under s 67", but went on to make a number of observations on this point: see para [10]-[15). After considering the relationship between the Court and the Tribunal, Young J observed at [15]: It would seem to me that s 67 of the Guardianship Act operates so that broad questions of administration and policy and the applicability of policy to individual cases, even if they are not questions of law, may well be subjects on which the Court will grant leave to appeal. On the other hand, it is very unlikely that the Court will grant leave to appeal when there is a problem with a fact finding exercise unless there are clear indications that the Tribunal has gone about that fact finding process in such an unorthodox manner or in a way which is likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. 57 No persuasive argument has been advanced to support the submission that leave ought be granted for the appeal to be extended to the merits in this case. There is nothing to suggest that the circumstances that Young J suggested might warrant a consideration of leave being granted, arise in this case. 58 For these reasons we have decided not to grant leave under s 118B(1) for the appeal to proceed other than on question of law. Orders Appeal is dismissed.

CZ v Public Guardian & ors

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Judgment (16 paragraphs)

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Cases Cited (11)