J v Lieschke

The Tribunal requires that further information be obtained by the Public Trustee and be provided confidentially to the Tribunal including the following:

• Copies of any will of XHQ held by Treloars Solicitors or the Public Trustee plus copies of any associated instructions provided to Treloars Solicitors or the Public Trustee by XHQ
• The results of further enquiries by the Public Trustee into an alleged sum of approximately $700,000 taken from the estate of XHQ between March 2012 and May 2014

1. Subsequently, the Public Trustee provided a report to the Tribunal and copies of two wills executed by XHQ in 2011 and 2013 respectively. Those documents were not provided to any other party.
2. At the final hearing on 16 March 2017 the applicant was present and represented by counsel. BUW and Mr Hogg were also present. The Tribunal declined a request on behalf of the applicant that BUW be excluded from the hearing room.
3. The Tribunal indicated that it had received a report from the Public Trustee and two wills executed by XHQ. The Tribunal indicated that the report of the Public Trustee had been provided in confidence and would not be released. The Tribunal indicated that it would not rely upon the report but rather would hear oral evidence from Mr Hogg. The Tribunal indicated that it would have regard to the two wills that had been received.[2]
4. Counsel for the applicant did not object to that course being adopted and made no specific application for release of the report or the wills.
5. The Tribunal advised those present at the hearing that the two wills had been executed in 2011 and 2013 respectively. In each case they had been prepared by Mr Ray Frost, solicitor. Counsel for the applicant indicated that he was happy to accept Mr Frost's competence as a lawyer in the area and his independence "within the confinements of being instructed by a client".[3]
6. The Tribunal referred to the monies disbursed by XHQ between 2012 and 2014. It indicated that:

If there was going to be any agitation of the issues of the monies that have gone out of the estate, that's not really a matter for this Tribunal.

The applicant's counsel agreed. It was common ground that the issue before the Tribunal was the question as to who should be the administrator of XHQ's estate.[4]

So, I quite understand that this Tribunal is not going to investigate the issue of what has been done with these monies.[5]

However, he argued that BUW's position was compromised.

1. The Tribunal indicated that FSY and BUW were appointed as Executors and Trustees in each of the wills executed by XHQ in 2011 and 2013 respectively. It indicated that there were a series of beneficiaries under the wills. It indicated that the Tribunal's order would have to have regard to the concern that the estate be carefully managed and preserved.[6]
2. BUW indicated that it was the intention of FSY and himself to stand aside from the administration of XHQ's estate after her death and to have no involvement whatsoever.[7]
3. The Tribunal asked counsel for the applicant whether he was happy for the Tribunal to have Mr Hogg address the matter of the Public Trustee's enquiries. Counsel answered affirmatively.[8]
4. Mr Hogg stated that the Public Trustee was satisfied that the cheques were appropriately issued. XHQ had deliberately obtained advice from a solicitor as to how she could make those payments without them being able to be disputed. The solicitor had obtained evidence from a doctor who had described XHQ as being competent and having capacity to make the decisions. XHQ had told the doctor what she intended to do and the reasons why. This was noted by the doctor and those notes were provided to the Public Trustee. Two days later XHQ attended the solicitor's office where in the presence of the solicitor she authorised the payments to be made. Mr Hogg confirmed that the payments made matched the payments that XHQ wanted to be made. Mr Hogg expressed the view that the allegations in relation to inappropriate payments were groundless and that the payments were made carefully and consistently with XHQ's requirement that she did not want her family involved in personal and financial affairs.[9]
5. Mr Hogg gave evidence about the management of the house property and explained why decisions had been taken in that regard.[10]
6. Mr Hogg also indicated that the Public Trustee was satisfied that the hairdressing business was being managed appropriately and was subject to proper accounting practices supervised by an accountant. The Public Trustee had agreed that the business maintain a float of $20,000 and that any funds in excess of that be returned to the estate. That had occurred.[11]
7. The Tribunal invited counsel for the applicant to ask questions directly of Mr Hogg. Counsel did ask some questions in response to that invitation. He was not restricted in doing so.[12]
8. The Tribunal then discussed the application for a guardianship order and a consensus was reached that there was no need for that order to be pursued at the time. It was agreed that issues of guardianship would be left to the current informal arrangements.[13]
9. Counsel for the applicant made it clear that the applicant's desire was to be appointed as the "full administrator" of the estate.[14]
10. Mr Hogg gave some further evidence about structural and safety issues concerning the house property which would need to be attended to at considerable expense before the property could be rented. He expressed the view that it was not appropriate, given XHQ's life expectancy, to expend the monies that would be necessary for that purpose. Therefore, it was not proposed to rent the property.[15]
11. There were other matters referred to during the hearing, but the above summary is sufficient for present purposes.

1. After reserving its decision, the Tribunal held that an administration order should be made and appointed the Public Trustee as full administrator of the estate.
2. The Tribunal published a Statement of Reasons for its decision on 13 July 2017.
3. It is not necessary to set out the content of the Statement of Reasons in any detail. However, it is noted that the Statement of Reasons provided some further limited information about the content of the two wills which were dated October 2011 and July 2013.
4. In the Statement of Reasons, the Tribunal considered the arguments that had been put on behalf of the applicant by her counsel.
5. The Tribunal referred to the provisions of s 5 of the Guardianship and Administration Act 1993 (the G & A Act). It was satisfied that it was impossible to ascertain the current wishes of XHQ for the purposes of s 5(b) of the G & A Act. As to s 5(a), the Tribunal stated (and I take the liberty of correcting an obvious error):

All the evidence in this case points to ... [XHQ] wishes being that FSY and BUW manage her financial affairs in the event of her loss of capacity. She maintained that position consistently from at least 2011 onwards. She had a long financial relationship with BUW and placed much trust in him. He was the executor of at least three of her wills of which we are aware and FSY was the co-executor in the last two wills. Despite the conflicting medical evidence of 2011 as to XHQ's capacity, it seems that as late as 2013 XHQ apparently had testamentary capacity and decided once more to change her will in a manner that reduced the entitlements of some of her family members and maintained her strong reliance on these two gentlemen to make financial judgments on her behalf in the event of her loss of capacity.

The Tribunal accepts the evidence of BUW and FSY that XHQ was adamant in 2011 and onwards that she wanted her attorneys to maintain privacy about her financial affairs and that she did not want her family to be privy to any details of her asset position or to the detail of her investments. The Tribunal accepts their evidence that she maintained that position while she had capacity and from at least 2011 onwards.[16]

1. The Tribunal indicated that the Public Trustee appeared to be managing XHQ's property in a reasonable manner and that it had investigated the allegations concerning the cheques paid out.[17]
2. The Tribunal further indicated that it was not persuaded that the applicant would be an appropriate administrator. It gave reasons for that finding. These are set out in the Statement of Reasons.[18]

1. The applicant's grounds for internal review are lengthy but can be summarised as follows:
   1. The Public Trustee is not managing the protected person's estate properly in that:

1. It has not conducted an enquiry into possible rights to recover some of the lump sum payments made, and 2. It intends to allow the house property to waste, and

1. It does not intend to properly supervise the hairdressing business, and

1. It will administer the estate on the basis that XHQ will soon die. 2. Mr Hogg, and thus the Public Trustee, is not independent, has not taken the views of the family into account and is administering the estate on a minimum effort basis. 3. The wishes of XHQ, when she had capacity, should not be given significant weight in the circumstances of the case. 4. The hearing was conducted on material not made available to the applicant including the wills, Mr Hogg's report, materials on which the Public Trustee based its decisions, and "any other communications or submissions to or before the Tribunal". 5. BUW was permitted to participate in the hearing despite having a conflict of interest.
2. By letter dated 25 September 2017 the applicant's solicitor sought release of:

... all documents held by the Public Trustee with respect to their management of the affairs of XHQ.

This includes, but is not limited to the following:

1. Any and all wills and codicils made by XHQ,

2. Any and all communications between the Public Trustee and XHQ,

3. Any and all evidence obtained with respect to the mental capacity of XHQ,

4. Any and all information with respect to the Valley View Nursing Home,

1. Any and all communications between BUW, FSY and the Public Trustee in combination or singularly,
2. All information and correspondence with other parties relating to the Salisbury property situate at Salisbury Heights; and
3. All other correspondence, communications, reports and the like with reference to XHQ.
4. The application for release of information was opposed by the Public Trustee and by Ms Tara Simpson who appears as independent counsel for the protected person. The President of the Tribunal directed that the application for release of documents be determined as a preliminary point. She restricted her direction to evidence "on which the Tribunal relied".[19] Nonetheless, the applicant pursued in her written submissions the wider request for disclosure previously made[20] and I will consider that wider request.

1. The South Australian Civil and Administrative Tribunal Act 2013 (the SACAT Act) confers considerable flexibility upon this Tribunal as to the way in which it hears and determines matters. That flexibility is desirable to achieve the objectives of the Tribunal as set out in s 8 of the SACAT Act. These include:
   • To promote the best principles of public administration, including natural justice and procedural fairness, high quality, consistent decision-making, and transparency and accountability in the exercise of statutory functions, powers and duties;[21]
   • To act with as little formality and technicality as possible, including by informing itself in such manner as it thinks fit;[22]
   • To be flexible in the way in which it conducts its business "and to adjust its procedures to best fit the circumstances of a particular case or a particular jurisdiction".[23] (Emphasis added)
2. In the case of any inconsistency between the SACAT Act and a relevant Act, the relevant Act prevails to the extent of the inconsistency.[24]
3. Pursuant to the SACAT Act, the Tribunal is required to "take all practicable steps to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all the relevant facts in issue in any proceedings".[25] This places an obligation on the Tribunal that is extraordinary in nature even in relation to other jurisdictions that, like the guardianship jurisdiction, are inquisitorial rather than adversarial.
4. Section 60 of the SACAT Act provides as follows:

60 - Hearings in public

(1) Subject to this or any other Act, proceedings before the Tribunal must be heard in public.

(2) The Tribunal may, where it is satisfied that it is desirable to do so -

(a) in the interest of justice; or

(b) by reason of the confidential nature of the evidence to be given before the Tribunal; or

(c) in order to expedite proceedings of the Tribunal; or

(d) for any other reason that the Tribunal thinks sufficient,

give directions -

(e) requiring that a hearing, or part of a hearing, be held in private; or

(f) prohibiting or restricting the publication of the name and address of a witness appearing before the Tribunal; or

(g) prohibiting or restricting the publication of evidence given before the Tribunal or of the contents of any document produced to the Tribunal; or

(h) prohibiting or restricting the disclosure to some or all of the parties to proceedings before the Tribunal of evidence given before the Tribunal or of the contents of any document produced to the Tribunal; or

(i) excluding any person from the hearing before the Tribunal of any part of the proceedings.

(3) A person must comply with a direction of the Tribunal under subsection (2).

Maximum penalty: $10 000."

1. Section 5 of the G & A Act provides as follows:

5 - Principles to be observed

Where a guardian, an administrator, the Public Advocate, the Tribunal or any court or other person, body or authority makes any decision or order in relation to a person or a person's estate pursuant to this Act or pursuant to powers conferred by or under this Act -

(a) consideration (and this will be the paramount consideration) must be given to what would, in the opinion of the decision maker, be the wishes of the person in the matter if he or she were not mentally incapacitated, but only so far as there is reasonably ascertainable evidence on which to base such an opinion; and

(b) the present wishes of the person should, unless it is not possible or reasonably practicable to do so, be sought in respect of the matter and consideration must be given to those wishes; and

(c) consideration must, in the case of the making or affirming of a guardianship or administration order, be given to the adequacy of existing informal arrangements for the care of the person or the management of his or her financial affairs and to the desirability of not disturbing those arrangements; and

(d) the decision or order made must be the one that is the least restrictive of the person's rights and personal autonomy as is consistent with his or her proper care and protection.

1. Section 35 of the G & A Act provides for the making of administration orders. Section 35(2) provides as follows:

(2) Any of the following may be appointed as an administrator under this section:

(a) the Public Trustee;

(b) a trustee company;

(c) any natural person who the Tribunal considers suitable to act as administrator of the person's estate.

1. Section 40 of the G & A Act deals with an administrator's access to wills and other records and provides that an administrator must not disclose the contents of a will to anyone other than the protected person without the authority of the Tribunal.
2. Section 44 contains certain provisions requiring private administrators to make reports to the Public Trustee who must examine these reports and report on them in turn to the Tribunal.
3. Section 50 of the G & A Act sets out matters to which the Tribunal must have regard in determining the suitability of a person for appointment as a guardian or administrator.

1. I have been assisted by the submissions of counsel. I have also been assisted by the content of the report of the Queensland Law Reform Commission: Public Justice [2007] QLRC 62 (the Queensland Report) insofar as it contains a useful discussion of the relevant legal principles and policy arguments. I note that issues raised by this application are of general application. I also note that quite different approaches appear to be adopted in jurisdictions across Australia. The Queensland report does not necessarily reflect views held elsewhere.
2. Confidentiality issues arise in guardianship proceedings in different contexts. The context that I am considering here is the potential release of sensitive and confidential information about the financial and personal affairs of the subject person to other family members. These Reasons should be understood as applicable to this context.
3. As this matter illustrates, there can often be a tension between three important factors:
   • The principle of open justice and accountability
   • The principle of procedural fairness
   • The nature of the guardianship jurisdiction with its unique issues and focus on the protection of the individual.
4. There is no doubt that the first two principles must on occasions be modified in their application due to the nature of the jurisdiction in which they are being applied.
5. In J v Lieschke [1987] HCA 4; (1987) 162 CLR 447, at pages 456-457, Brennan J stated (Mason, Wilson, Deane and Dawson JJ concurring):

If an unqualified application of the principles of natural justice would frustrate the purpose for which the jurisdiction is conferred, the application of those principles would have to be qualified.

1. An obvious example of this is the jurisdiction under the Freedom of Information legislation. Of necessity, the applicant for access to a document must argue the case without knowing what information is in the document. It would defeat the purpose of the legislation for that information to be disclosed. This is an obvious and inevitable modification of the principle of procedural fairness.
2. Another example is that of legislation which places obligations on the decision-maker such as an obligation that a child's welfare be considered as the paramount consideration. In Separate Representative v JHE (1993) 16 FLR 485 at page 499 Nicholson CJ and Fogarty J in the Full Court of the Family Court recognised that this meant:

that the rights of the disputants to natural justice are therefore qualified to the extent that those rights encroach on or are in conflict with those obligations.

1. The nature of the guardianship jurisdiction is unique. It is not an "inter partes" jurisdiction. The purpose of the jurisdiction is to protect persons who have a mental incapacity. (I will refer to such persons as "protected persons" and use that term to include those who are the subject of applications under the G & A Act, even where an order has not yet been made).[26] The focus of the jurisdiction is not on the rights of interested persons, but on the rights and interests of the protected person.
2. Others, such as family members, may have an interest in the matter but the Tribunal is not determining the relevant issues as between the protected person and others. The nature of the jurisdiction is inquisitorial and protective.
3. The applicant for an administration order (perhaps a family member or a health practitioner) is not seeking to enforce any existing legal right, but rather to create a new legal right or status.
4. Protected persons are not normally before the Tribunal of their own volition. They are brought there by others and the proceedings will often concern matters which are highly personal, sensitive and confidential. If the person had capacity, no-one else would have the right to access such personal information. The protected person's right to privacy is an important aspect of personal dignity which the legislation seeks to preserve and respect.
5. There is a risk that release of highly sensitive personal information (such as details of a person's will) to family members will in fact damage family relationships and consequently cause significant detriment to a protected person.
6. These factors mean, in my view, that there will sometimes be a basis for the Tribunal to receive information relevant to the issues before it without disclosing that information in full, or at all, to those participating in the hearing. It is a matter of judgement for the Tribunal. The exercise of that judgement must be approached judicially. Regard should be had to the fact that greater disclosure may enhance accountability and therefore the quality of decision-making, but also to the fact that disclosure may constitute an invasion of the privacy of the person whom the proceedings are designed to protect. It might perhaps be argued that greater disclosure may be merited where the issues before the Tribunal appear finely poised.
7. As the Queensland report recognised, decisions about disclosure ought to have regard to an "interested person's" relationship to the protected person. This is so even where the "interested person" is an applicant for an order. The desirability of disclosing information may depend in part on the nature and closeness of the relationship. In the present case the applicant's status as daughter of the protected person is obviously to be considered, but so too her previous estrangement from her mother and her mother's expressed views and wishes.
8. Furthermore the G & A Act provides that the paramount consideration, in making any decision "in relation to a person or a person's estate" is what the person's wishes would be if the person was not mentally incapacitated.[27] This provision is wide enough, in my view, to embrace procedural decisions that will affect a person's privacy. Obviously, the person's presumed wishes cannot be determinative, but they are of considerable importance.
9. It is important that the Tribunal have reliable information upon which to determine issues that arise. It is important that professional witnesses (or potential witnesses) are not dissuaded from voluntarily providing information to the Tribunal by fear that the information will be provided to others contrary to the wishes of the protected person. It is important that there not be a reluctance to invoke the jurisdiction of the Tribunal due to fear that personal privacy will be invaded to an unacceptable degree. All of these considerations support the view that it may be necessary and appropriate at times for the Tribunal to receive information without disclosing it to family members.
10. The rules of procedural fairness are flexible, and it is recognised that they can sometimes be satisfied by summarising information from a document rather than providing the document itself. Similarly, oral evidence taken in the absence of a party can be dealt with in a similar way. It may often be appropriate to proceed in this way in relation to items of evidence in guardianship proceedings to limit the extent to which a protected person's privacy is invaded.
11. The guardianship jurisdiction is also a high-volume jurisdiction where there must be a focus on expeditious and timely disposition of matters. The resources of this Tribunal are not such that it would be feasible for issues of relevance, let alone issues of disclosure or privacy, to be resolved before a matter is listed for hearing. An approach of disclosing documents prior to hearing, and perhaps regretting it later, does not commend itself. Of necessity, such matters are dealt with at the hearing when all relevant considerations can be raised and considered.
12. Particular issues arise in relation to information lodged with the Tribunal (and read by the presiding member) but not received into evidence or taken into account in a decision. The Queensland report refers to the decision of the High Court in Applicant Veal of 2002 v Minister of Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 at 95 as a basis for suggesting that the receipt of such information should be disclosed. However, the context of that case was very different. The jurisdiction was not a protective jurisdiction where the focus had to be the care and welfare of a protected person. Disclosure of the evidence in question in that case, in the very limited way suggested by the High Court,[28] would not have had any adverse effect on the privacy or rights of any person. There was no compelling reason why the information ought not to have been provided in the way suggested. The guardianship jurisdiction is different. Disclosure may significantly invade the protected person's privacy, damaging the very person the proceedings are designed to protect. I do not accept the proposition that information that is not received into evidence and not taken into account should necessarily be disclosed to those present at a hearing in such proceedings. It is a matter for judgement in the individual case.
13. It is usual for the member presiding at proceedings to indicate what information is being received into evidence and taken into account. That occurred in this case.
14. Section 8(1)(g) of the SACAT Act (while strictly referring to "procedures") acknowledges the need for flexibility in dealing with "particular cases" and "particular jurisdictions". Section 60 of the SACAT Act confers on the Tribunal flexible powers for dealing with the tensions which have been noted. That section recognises that there will be situations in which the "confidential nature of the evidence to be given before the Tribunal" will be a sufficient basis for making orders under the section. Furthermore, such orders can be made "for any other reason that the Tribunal thinks fit". The powers contained in s 60 must of course be exercised judicially, but the very breadth of the powers is instructive. The guardianship jurisdiction stands out as an area where the use of such broad powers may be applicable to protect persons with mental incapacity and achieve the objectives of the G & A Act.

1. Having made those general observations concerning the principles to be applied, it is important to keep in mind that the issues in this case are limited. The Tribunal will restrict itself to determining those issues.
2. Counsel for the Public Trustee expressed the view, with the benefit of hindsight, that too much information was disclosed in this case by the Public Trustee and the Tribunal. Certainly, the disclosures involved a significant erosion of the privacy of XHQ. It is not the intention of the Tribunal, in these reasons, to comment on whether too much information was disclosed. The Tribunal's task is to review whether further information ought to have been, or should now be, disclosed. The Tribunal restricts itself to that task.
3. The issue before the Tribunal at first instance was: who should be appointed as administrator? The applicant asserted that the appointment of the Public Trustee should be revoked and that she should be appointed as full administrator.
4. The Tribunal found that the applicant was not an appropriate person to be appointed. Reasons were given for that finding. The grounds of review do not suggest any basis for challenging that finding or the reasons on which it was based.
5. Rather the focus of the grounds of review is to suggest that the continued appointment of the Public Trustee would be inappropriate due to:
   • Alleged mismanagement of the estate by the Public Trustee; and
   • Alleged lack of independence on the part of Mr Hogg as the Public Trustee's representative.
6. The alleged mismanagement refers to:
   • Alleged failure to investigate the potential recovery of moneys paid from the estate; and
   • Alleged failure to manage the hairdressing business; and
   • Alleged failure to manage and care for the house property.
7. In my view, s 35 of the G & A Act requires the Tribunal to assume that the Public Trustee and licensed trustee companies are generally competent and suitable appointees as administrators. Section 35(2)(c) requires that the suitability of any other proposed administrator must be established. I would regard the provisions of s 50 of the G & A Act as applicable to prospective administrators who are natural persons. In other words, I regard the word "suitability" in s 50 as a reference back to the word "suitable" in s 35(2)(c).
8. The responsibilities conferred on the Public Trustee (including the vetting of reports from private administrators) tend to confirm a legislative assumption that the Public Trustee is generally to be regarded as a competent administrator.
9. That is not to say that the Public Trustee will always be an appropriate administrator for a particular estate or that the Public Trustee will always act competently in the role of administrator. Clearly there may be individual matters where the Public Trustee is found to have acted negligently or incompetently. There may be cases where the appointment or continued appointment of the Public Trustee is for some reason inappropriate.
10. It is not the role of the Tribunal to supervise the Public Trustee in the administration of an estate.[29] Whilst asserting mismanagement, counsel for the applicant accepted at first instance that the role of the Tribunal in respect of such matters was limited. In my view, it is appropriate for the Tribunal to satisfy itself that there is no apparent reason why the Public Trustee should not be appointed. The Tribunal purported to do so in this case. The Tribunal does not have to examine in detail allegations made before it if the evidence before the Tribunal does not appear to impugn the continued appointment of the Public Trustee.
11. Mr Hogg gave evidence about each of the allegations of mismanagement. As to the potential recovery of moneys paid from the estate, his evidence was that the matter had been investigated and the payments appeared to have been deliberately and properly made by XHQ (on legal advice and with medical involvement) when she had capacity. As to the hairdressing business, Mr Hogg gave evidence of steps taken to ensure it was operating profitably and under the supervision of accountants. Steps were taken to ensure that the business was adequately insured and to return to the estate any amounts held in excess of an appropriate float. In relation to the house property, Mr Hogg gave evidence of steps taken to maintain and secure the property. He stated that significant amounts would have to be spent on the house to bring it to a standard where it could be rented to a family member or at all. Given XHQ's life expectancy, such expenditure was not warranted.
12. Counsel for the applicant was given the opportunity to question Mr Hogg but did not ask any questions which substantially challenged Mr Hogg's evidence about these matters. No request was made for the disclosure of further documents. Instead counsel put submissions about the alleged mismanagement based on the evidence Mr Hogg had given. He criticised aspects of Mr Hogg's approach to the management of the estate but did not expressly suggest to Mr Hogg or to the Tribunal that Mr Hogg or the Public Trustee lacked independence. The Tribunal accepted Mr Hogg's evidence and found that it appeared that the estate was being managed in a reasonable manner.
13. The applicant now seeks on internal review disclosure of further documentation in an apparent attempt to go behind the evidence of Mr Hogg. In this regard, it is to be noted that the calling of additional evidence on internal review is discretionary and the bringing of an internal review application may only occur with the permission of the Tribunal (which has not at this stage been sought or given)[30]. My provisional assessment is that the applicant's proposed case on internal review is weak.
14. Against this background, I turn to consider the documents that are the subject of the request for disclosure.

1. The Tribunal received the two wills into evidence and indicated that it would rely on various matters in them. The wills were not disclosed to the applicant. However, the Tribunal provided those present with a summary of the information in the wills which it considered relevant to the issues before the Tribunal. Having reviewed the wills, I have no doubt that the applicant was provided with procedural fairness by means of that summary. There was nothing further in the wills that could conceivably have advanced the applicant's case or otherwise have been of relevance.
2. Counsel for the protected person submitted that the evidence in this case was very clearly to the effect that XHQ did not wish her family to know about her financial affairs or to be involved in them. There appears to be a considerable body of evidence to this effect. There appears to be no evidence to the contrary. Unsurprisingly, the Tribunal found that the wishes expressed by XHQ when she had capacity were likely to mirror what her wishes would be if she were not incapacitated. The applicant argues that no significant weight should be accorded to XHQ's wishes. Whilst XHQ's wishes are clearly not determinative of the matter (and this Tribunal in other contexts must sometimes make orders that are not in accord with a protected person's expressed wishes) such wishes are deemed by s 5(a) to be the paramount consideration. The Tribunal can hardly accord them no significant weight.
3. Disclosure of the wills, at the hearing at first instance or on internal review, would constitute a significant invasion of XHQ's privacy. Wills are highly confidential documents[31] and disclosure would be contrary to XHQ's wishes, expressed on various occasions when she had capacity.
4. There is no basis, in my view, on which to support disclosure of the wills on internal review.

1. The report of the Public Trustee was not received into evidence by the Tribunal. The Tribunal made it clear that it would not release the report or have regard to the report itself. Instead oral evidence was received from Mr Hogg in the presence of the applicant, her counsel and her family. The applicant, through her counsel, did not object to this course. Mr Hogg's evidence covered the various matters raised by the applicant. The applicant's counsel was given the opportunity to question Mr Hogg.
2. Thus, the applicant heard the evidence that the Tribunal intended to take into account, had an opportunity to question Mr Hogg, and had an opportunity to address the relevant issues in submissions. Having regard to all of the circumstances, I am satisfied that procedural fairness was afforded to the applicant in an appropriate manner. There is no sufficient basis, in my view, for the Tribunal to sanction a further invasion of XHQ's privacy by ordering disclosure of the report on internal review.

1. The applicant also sought disclosure (quite indiscriminately, in my view) of other documents that might be held by the Public Trustee (regardless of whether they have ever been provided to the Tribunal). This request is made for the first time on internal review. I regard this request as in the nature of a "fishing expedition", embarked upon with little apparent understanding of, or concern for, the wishes and rights of XHQ. Whilst every matter must be considered on its merits, the Tribunal should be careful to ensure that its processes are not abused by inappropriate attempts to access sensitive and personal information concerning a protected person. The disclosure of the information sought would constitute a serious invasion of XHQ's privacy and would be contrary to her wishes, expressed on various occasions when she had capacity. In all the circumstances of this case, I decline to order such disclosure for the purposes of the internal review.

1. In the end, I do not consider that there has been any material unfairness to the applicant in the way that the matter proceeded at first instance. Nor is there any unfairness in refusing the request for disclosure now made on internal review. I have not overlooked the fall-back position of the applicant that documents might be disclosed to her counsel, but I do not consider such an approach to be desirable or appropriate. As counsel for the Public Trustee submitted, disclosure of the information is not necessary and restricted disclosure to counsel must always have the potential to be problematic.
2. The decision of the Tribunal at first instance to refrain from disclosing the relevant documents to the applicant was clearly within the discretion of the Tribunal and, in my view, was the correct and preferable decision. It was consistent with the obligation of the Tribunal to have regard to XHQ's best interests and to regard her expressed wishes as a paramount consideration. These factors (and particularly the privacy of XHQ) must take precedence over any asserted unfairness to the applicant in the circumstances of this case.
3. I refuse the application for disclosure of documents.
4. I will make orders under s 60 of the SACAT Act to give effect to this decision.
5. In writing these Reasons, I have been reminded of a matter which was overlooked at the hearing before me. By letter dated 11 September 2017, the Public Trustee through its solicitors provided "confidential" submissions to the Tribunal concerning the internal review. It was requested that these submissions not be disclosed without an opportunity for submissions to be made as to whether that is appropriate. Having now reviewed this document, I consider that it contains nothing of any significance by way of factual material or submission that has not been discussed in open hearing or otherwise disclosed to the applicant. I do not intend at this point to make an order under s 60 of the SACAT Act in respect of this document but I will hear submissions if any issue arises.

[1] but erroneously indicating that the hearing was held on 24 March 2016.

[19] See Directions given 11 October 2017 and 13 November 2017.

[20] Although the oral submissions of counsel appeared to be more limited.

[26] I acknowledge that this is not consistent with the definition of a "protected person" in the G & A Act, but it is convenient.

[28] The High Court stated that the Tribunal was correct to have not disclosed the letter or the identity of its author, but should have told the applicant of the allegations made against him.

[29] Re LXN [2016] SACAT 23 at [30-31].

[31] Reference is made to s 40 of the G & A Act and Rule 51 (d) of the SACAT Rules 2014 which appear to reflect that fact. However, I do not accept the submission that wills drafted by a solicitor are the subject of legal professional privilege once signed.