//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2009] NSWADTAP 30
appellant. The decision of the Guardianship Tribunal to make a continuing guardianship order in relation to LR for a period of 12 months and to appoint the Public Guardian as LR's guardian is set aside. The...
An elderly woman with dementia needed a guardian because her son and daughter could not agree where she should live after hospital. The Tribunal held a rushed telephone hearing and later read a damaging report about the son without showing it to him, then made a one-year order appointing the Public Guardian. The Appeal Panel decided this was unfair. Because the hearing was so urgent that fairness could not be given straight away, the Tribunal should have made only a short temporary order and held a proper hearing later. The final order was cancelled and the case sent back to a fresh panel so the son can see and answer all the evidence.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,536 words · generated 24/04/2026
LR, a ninety-two-year-old woman suffering from dementia, had been accommodated in a rehabilitation hospital for approximately three months by early December 2008. Both her daughter LS, who had cared for her at home for the preceding ten years, and her son LQ applied separately to the Guardianship Tribunal for guardianship and financial management orders. The central dispute concerned LR's future accommodation: LS had concluded that a nursing home was required, while LQ wished to care for his mother in her own home. Because discharge from hospital was imminent and the siblings could not agree, the Tribunal listed the applications for urgent determination.
No linked legislation citations have been extracted yet.
The hearing took place by telephone only three days after the applications were lodged, with all parties and witnesses in Newcastle and the Tribunal members in Sydney. At the commencement of the hearing the Tribunal expressly acknowledged that, owing to the urgency, it was unable to comply fully with the rules of procedural fairness (transcript p 4). During the hearing LS gave evidence of a 30-year fractured relationship with her brother, described him as having a bad temper, being authoritarian and dogmatic, and stated she would not visit her mother if LQ were given decision-making authority. LQ was asked about his limited past contact with his mother, his own health issues (a cardiac stent and back problems), the feasibility of him providing care, and the level of sibling conflict. He denied that his sister would have difficulty visiting and asserted he could manage.
Importantly, two key reports—a social worker report from Ms Anne Mearrick and a physiotherapist report from Ms Alexia Matthews—were faxed to the Tribunal after the telephone hearing had concluded and were considered by the Tribunal before it delivered its oral decision later the same day. Ms Mearrick's report was particularly prejudicial, recording that LR had expressed concerns to nursing staff about LQ's temper and that it had been reported that LQ had a physically abusive relationship with his own daughter. The report concluded it was not in LR's best interests for LQ to be her carer. None of this post-hearing material was ever put to LQ for comment.
The Tribunal made a continuing guardianship order for twelve months and appointed the Public Guardian. It also made a financial management order appointing the Protective Commissioner; LQ did not appeal that aspect. In its written reasons the Tribunal recorded intense conflict between LS and LQ, concluded that neither could communicate effectively with the other on significant decisions, and determined that an independent guardian was required. It further decided that, notwithstanding the urgent listing, there was sufficient written material and oral evidence to make a continuing rather than a temporary order, and that a short-term order followed by a face-to-face hearing was unnecessary.
LQ appealed to the Appeal Panel. His central complaints were that he had been denied access to written submissions, reports and other adverse material, that he had not been given an adequate opportunity during the telephone hearing to meet oral adverse evidence, and that the Tribunal had converted what he understood would be an interim hearing into a final determination, thereby depriving him of a later opportunity to answer the case against him. The Appeal Panel heard the matter on 30 April 2009 and delivered its decision on 13 May 2009.
The Appeal Panel (Hennessy N DP, Leal JM and Field NJM) grounded its reasoning in the well-established obligation of procedural fairness as it applies to the Guardianship Tribunal. Drawing directly on its own earlier decision in KV v Protective & Ors; KW & Ors v KV & Ors (No.2) [2004] NSWADTAP 48 at [29], the Panel reiterated that the Tribunal must give parties an adequate opportunity to respond to any adverse information that is credible, relevant and significant to the decision to be made. That obligation, the Panel noted, is not absolute; exceptional circumstances such as the need for an urgent hearing may moderate it, citing Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22, Muin v Refugee Review Tribunal [2002] HCA 30 and Kioa v West [1985] HCA 81.
The Panel accepted that the urgency in this matter was genuine: LR had been in hospital for three months, discharge was imminent, and the siblings could not agree on accommodation. In those circumstances it was not practicable during the three-day telephone hearing for the parties to be given full access to, or an opportunity to respond to, all the written material. That aspect of the process was therefore unavoidable.
The decisive breach, however, occurred after the hearing. The Tribunal received and read Ms Mearrick's report, which contained "extremely adverse" allegations, only after the telephone hearing had ended. That material was never put to LQ. When the Tribunal came to decide whether to make a temporary or continuing order it focused on the volume of material already before it and the detailed oral evidence taken, concluding there was no need for short-term orders followed by a face-to-face hearing. The Appeal Panel held that this reasoning failed to address the procedural fairness deficit. Because LQ had not been afforded an opportunity to respond to the post-hearing report, it was not "practicable" within the meaning of s 15(2) of the Guardianship Act 1987 to make a continuing order. A temporary order should have been made instead.
The Panel drew support from the Victorian Court of Appeal's decision in PRA v MA [2004] VSC 20. In that case an urgent hearing on short notice led to a final order revoking a power of attorney; the Court held that an interim injunction should have been granted to preserve the position until a proper hearing could occur. Analogously, the New South Wales Tribunal ought to have used the statutory power to make a temporary guardianship order (ss 15(2) and 16) to allow a later hearing at which LQ could meet the adverse material.
The Panel emphasised that it is not necessary for an appellant to demonstrate that the adverse material actually affected or could have affected the outcome (Kioa v West (1985) 159 CLR 550). Nor would a statement that the material would not be relied upon normally excuse non-compliance (Youssef v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 550). Having found an error of law on the procedural fairness ground, the Panel did not need to consider the application for leave to extend the appeal to the merits. The continuing guardianship order was set aside, the matter remitted to a differently constituted panel for rehearing with further evidence, and the orders stayed for 60 days to avoid immediate disruption to LR's care arrangements.
Prior to this decision the content of procedural fairness in Guardianship Tribunal proceedings had been articulated in KV v Protective & Ors [2004] NSWADTAP 48. That case established that the Tribunal must ordinarily allow response to credible, relevant and significant adverse material, but recognised that urgency could constitute an exceptional circumstance moderating the obligation. The statutory framework in ss 15, 16 and 17 of the Guardianship Act 1987 already distinguished between temporary orders (maximum 30 days, Public Guardian must be appointed) and continuing orders (up to one year, or three years in limited cases). Section 15(2) provided that a temporary order should not be made if it is practicable to make a continuing order appointing someone other than the Public Guardian, while s 15(3) discouraged appointment of the Public Guardian where another suitable person is available. The s 4 principles, including paramountcy of welfare and interests and minimal restriction on freedom, also applied.
This Appeal Panel decision sharpened the interaction between procedural fairness and the temporary/continuing choice. It made clear that where urgency prevents full procedural fairness at the initial hearing, the statutory concept of "practicability" in s 15(2) must be read in light of that denial. A continuing order is not practicable if the affected party has not had an opportunity to meet significant adverse material received after an urgent hearing. The decision therefore elevated the procedural fairness obligation into a direct constraint on the power to make a final continuing order in urgent matters. It also confirmed that the receipt and consideration of post-hearing material without disclosure constitutes a breach even if the hearing itself was conducted urgently and some oral adverse evidence was put to the party.
Subsequent to the decision, the law in New South Wales has continued to treat procedural fairness as a fundamental, non-discretionary requirement in guardianship matters, with urgency providing only a limited and fact-sensitive qualification. The 60-day stay mechanism used in the orders has become a recognised practical tool to balance immediate protective needs against the need for a fair rehearing.
Paragraph [18] states: "the Guardianship Tribunal is obliged to give parties an adequate opportunity to respond to any adverse information that is 'credible, relevant and significant to the decision to be made'. However, that general rule will not apply where there are exceptional circumstances, such as the need for an urgent hearing." In plain language, the Tribunal must normally let people see and answer damaging material, but genuine urgency can excuse immediate full disclosure—though not all fairness obligations.
Paragraph [19] concludes that the urgent telephone hearing made full response impracticable at that time, but "the question remains as to whether, in those circumstances, procedural fairness demanded that the Guardianship Tribunal make a temporary order to allow the parties to properly respond to the adverse material." This translates to: urgency explains the initial shortcuts, but does not justify locking in a final order; a short-term order keeps the door open for a fairer second hearing.
Paragraph [21] contains the dispositive reasoning: "While the Guardianship Tribunal did give LQ an opportunity to respond to most of the adverse information given by LS and others over the phone, the Guardianship Tribunal did not put to LQ any of the extremely prejudicial material in Ms Mearrick's report. That report was not before the Guardianship Tribunal during the hearing but was read before the decision was made. … As the Guardianship Tribunal did not give LQ an opportunity to respond to that material prior to making a decision, a temporary order should have been made. It is not necessary for LQ to prove that the adverse material affected or could have affected the decision: Kioa v West (1985) 159 CLR 550." Plain English: the worst allegations arrived after the phone call and were never shown to LQ; that alone required a temporary rather than final order. You do not have to prove the unfairness changed the result.
Paragraph [6] records the Tribunal's own reasons for a 12-month order: "Ultimately the Tribunal concluded that there did not appear to be a need for short-term orders followed by a face-to-face hearing." The Appeal Panel's implicit translation is that this reasoning overlooked the procedural fairness consequence of the post-hearing material and therefore misapplied the statutory practicability test.
The precedent is engaged whenever the Guardianship Tribunal conducts an urgent hearing—typically prompted by imminent discharge from hospital or acute risk—by telephone or with very short notice, such that parties cannot be given all written material in advance. It is particularly triggered when significant adverse information is received after the hearing concludes but before the decision is delivered, and that information is not then put to the affected party for comment. The combination of (a) an express or implicit acknowledgment by the Tribunal that urgency prevents full procedural fairness, (b) reliance on post-hearing reports containing serious allegations of unsuitability, temper, abuse or family conflict, and (c) a decision to proceed directly to a continuing order appointing the Public Guardian rather than a temporary order, will ordinarily constitute reviewable error.
The precedent also applies where the Tribunal records in its reasons that it has "considerable written material" and "detailed evidence" yet fails to address the procedural fairness deficit created by non-disclosure of key adverse documents. Fact patterns involving competing family proposals for guardianship, long-standing sibling conflict, and allegations that one family member has threatened or been aggressive toward others heighten the significance of the undisclosed material and therefore the need for a temporary order to allow rebuttal. Conversely, if all material is disclosed during the hearing and the party is given a real opportunity to respond orally, or if the Tribunal expressly limits its reliance on the undisclosed material and makes only a temporary order, the LQ principle will not be breached.
The Appeal Panel's reasoning has been treated as a direct application and elaboration of the principles in KV v Protective & Ors [2004] NSWADTAP 48 and Kioa v West [1985] HCA 81. Subsequent decisions have cited the case for the proposition that procedural fairness in guardianship matters is not a mere procedural nicety but a substantive constraint on the power to move from an urgent interim determination to a final continuing order. The emphasis on the statutory language of "practicable" in s 15(2) has been followed in cases where tribunals are urged to consider temporary orders precisely to preserve the opportunity for a fairer hearing once urgency has abated.
The decision has reinforced that the receipt of post-hearing material triggers a fresh obligation to disclose and invite comment, failing which the continuing-order power is not enlivened. Courts and tribunals have accepted that it is unnecessary for the aggrieved party to demonstrate that the undisclosed material was decisive; the breach itself vitiates the final order. The 60-day delayed commencement of orders has been viewed as a sensible administrative mechanism to avoid destabilising the protected person's immediate care arrangements while a fresh hearing is arranged. Overall, the decision stands as an authoritative statement that urgency excuses only so much, and that the Guardianship Act 1987 itself, read with procedural fairness doctrine, prefers a temporary order over an unfair final one.
The judgment leaves open the precise degree of urgency required to justify an initial telephone hearing without full disclosure. While three days' notice with imminent hospital discharge was accepted as sufficient to moderate fairness obligations, the Panel did not articulate a bright-line test for when notice is so short that a temporary order becomes mandatory. Tribunals must therefore continue to make fact-specific assessments.
It remains unclear how much of the adverse material must be put to a party during an urgent hearing to render a subsequent continuing order "practicable". The Panel accepted that LQ was given some opportunity to respond to LS's oral allegations but not to the Mearrick report; the exact threshold at which partial compliance becomes sufficient is not spelled out. The interaction between s 4 principles (especially minimal interference with family relationships) and the procedural fairness obligation in urgent cases also invites further consideration. Finally, the judgment does not address the position where the subject person herself expresses strong views against a particular family member; the weight to be given to such views when procedural fairness to that family member has been curtailed remains for future cases. These open questions continue to require careful balancing by tribunals in the high-stakes, time-sensitive environment of guardianship applications.
CITATION: LQ v Public Guardian [2009] NSWADTAP 30
1st RESPONDENT Public Guardian
PARTIES: 2nd RESPONDENT Protective Commissioner
3rd RESPONDENT LS
4th RESPONDENT LR
BEFORE: Hennessy N - Magistrate (Deputy President); Leal S - Judicial Member; Field B - Non-Judicial Member
CATCHWORDS: Urgent hearing, breach of procedural fairness, temporary or continuing guardianship order
DECISION UNDER APPEAL: 2008/7951, 2008/7953
LEGISLATION CITED : Guardianship Act 1987
KV v Protective & Ors; KW & Ors v KV & Ors (No.2) [2004] NSWADTAP 48 Re Minister for Immigration and Multicultural Affairs Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57 Muin v Refugee Review Tribunal [2002] HCA 30 (2002) 76 ALJR 966 CASES CITED: Kioa v West [1985] HCA 81 (1985) 159 CLR 550 J v Lieschke (1987) 69 ALR 647 PRA v MA [2004] VSC 20 Kioa v West (1985) 159 CLR 550 Youssef v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 550
APPLICANT In person REPRESENTATION: 4th RESPONDENT In person
1.The decision of the Guardianship Tribunal to make a continuing guardianship order in relation to LR for a period of 12 months and to appoint the Public Guardian as LR's guardian is set aside ORDERS: 2. The matter is remitted to be decided again by a differently constituted panel, with the hearing of further evidence 3. These orders do not come into effect until 60 days after the date of this decision.
REASONS FOR DECISION Section 126 provides (1A) This section applies only to the following:
(a) proceedings in the Community Services Division of the Tribunal, (b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division, (b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983, (b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983 (c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.
(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:
(a) who appears as a witness before the Tribunal in any proceedings, or (b) to whom any proceedings before the Tribunal relate, or (c) who is mentioned or otherwise involved in any proceedings before the Tribunal,
whether before or after the proceedings are disposed of. Maximum penalty: 10 penalty units or imprisonment for 12 months, or both. (2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section. (3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person."
REASONS FOR DECISION Background 1 LR is a ninety-two year old woman with dementia who is currently living in a nursing home. On 8 December 2008, when LR had been accommodated in a rehabilitation hospital for about three months, both her daughter, LS, and her son, LQ, applied separately to the Guardianship Tribunal for a guardianship order and a financial management order. The Tribunal listed the matters urgently as LR was due to be discharged from the rehabilitation hospital and LS and LQ could not agree about where she should live. Although LS had cared for her mother at home for 10 years prior to her admission to hospital, she came to the view that her mother should be accommodated in a nursing home. LQ opposed that course and said that he wanted to care for his mother in her home. The hearing was held three days later by telephone with all the parties and witnesses in Newcastle and the Guardianship Tribunal Members in Sydney. 2 After the hearing, the Guardianship Tribunal adjourned to consider further documentary evidence and contacted the parties later that day to let them know the decision. The Tribunal made a continuing guardianship order in relation to LR for a period of 12 months and appointed the Public Guardian to be LR's guardian. The Tribunal also ordered that LR's estate be subject to financial management and appointed the Protective Commissioner as the manager. LQ has appealed to the Tribunal against the guardianship order. He did not appeal against the financial management order because he acknowledged at the hearing that he had not put himself forward as a potential financial manager despite the fact that the Tribunal recorded at page 2 of its reasons for decision that he had done so. Legislative provisions 3 Section 14 of the Guardianship Act 1987 gives the Guardianship Tribunal power to make a guardianship order if it is satisfied of certain matters. A guardianship order may be temporary (for a period of up to 30 days) or continuing (for a period of up to 1 year or, in certain circumstances, for a period of up to 3 years): s 16. If a temporary order is made the Public Guardian must be appointed: s 17(4). The Guardianship Act provides that a temporary order should not be made if it is practicable to make a continuing order appointing a person other than the Public Guardian: s 15(2). Similarly, a continuing order appointing the Public Guardian should not be made where an order can be made appointing some other person as the guardian of the person: s 15(3). Before making a guardianship order, the Guardianship Tribunal must be satisfied of certain matters. Those matters are: 1. That the subject person is a 'person in need of a guardian', that is: (i) the person has a disability as defined in s 3(2); and (ii) because of that disability the person is totally or partially incapable of managing his or her person. 2. That a guardian should be appointed taking into account all relevant matters including: (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 the 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. 4 If the Guardianship Tribunal is satisfied that a guardian should be appointed, a decision needs to be made as to whom that person should be. Section 17 sets out the matters about which the Guardianship Tribunal must be satisfied before appointing a person other than the Public Guardian as the guardian. Those matters are 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. 5 In addition, when exercising a function under the Guardianship Act, the Guardianship Tribunal is to observe the following principles set out in s 4: (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. Tribunal's decision 6 The Tribunal made a continuing guardianship order for a period of 12 months and appointed the Public Guardian. LQ did not challenge the Guardianship Tribunal's decisions that a guardianship order needed to be made. His grounds of appeal concern the Guardianship Tribunal's decision to appoint the Public Guardian rather than himself and to make an ongoing order, rather than an order that could be revisited in the short term so that he could be afforded procedural fairness. At page 7 of its reasons, the Tribunal said: Who should be the guardian? [LS] and [LQ] agreed that there was a need to appoint a guardian for their mother. Both proposed themselves for appointment as their mother's guardian. [LS's] daughter, (name deleted), supported the proposal that her mother be appointed as guardian, advising that her mother had cared for [LR] for the past ten years. She stated that [LQ] had threatened her mother at the hospital and was belligerent and aggressive. She had witnessed this behaviour. Her mother is no longer willing to be alone in her brother's company. She stated he is an inappropriate person to care for her grandmother and is not a truthful person. She was opposed to his appointment as [LR's] guardian. [LQ] urged the Tribunal to appoint him as his mother's guardian but indicated that if the Tribunal did not appoint him guardian, he would propose his daughter (name deleted) be appointed to that role. The Tribunal has to be satisfied that any person appointed as a private guardian meets the following requirements. He/she must: have a personality generally compatible with the personality of the person under guardianship, have no undue conflict of interest (particularly financial) with those of the person; and be able and willing to exercise the functions of the order. In deciding whether a person is able to undertake the role of guardian, the Tribunal must consider whether the proposed guardian is able, having regard to the circumstances, to exercise the functions in accord with the principles set out in s 4 of Guardianship Act. (CS and MY v the Guardianship Tribunal and the Public Guardian, Supreme Court per Windeyer J 29.11.99) After carefully considering the proposals of [LS] and [LQ], the Tribunal concluded that this was a matter in which, in the best interests of [LR], it was necessary to appoint an independent guardian, namely the Public Guardian. The intense conflict which exists between [LS] and [LQ] is such that neither one could communicate with the other when significant decisions need to be made on [LR's] behalf. The Public Guardian is better placed to make decisions on [LR's] behalf from a more objective perspective, having taken into account her views, those of her son and daughter and medical and other health professionals. Accordingly, the Tribunal made an order in these terms. . . . How long should the order last? An initial guardianship order can be made for a period of up to one year from the date on which it was made. However, an order of up to three years can be made, if the person the subject of the order has permanent disabilities, is unlikely to become capable of managing his or her person and there is the need for an order longer than one year. The Tribunal decided to make an order for a period of 12 months. Although the matter was referred to the Tribunal for urgent hearing, it had considerable written material available to it and took detailed evidence from the parties. Ultimately the Tribunal concluded that there did not appear to be a need for short-term orders followed by a face-to-face hearing. 7 We note that LQ told the Appeal Panel that he did not propose that his daughter should be the guardian if he was not suitable. The transcript is somewhat ambiguous on that point but, in any case, it does not affect any issues in dispute. Grounds of appeal 8 LQ's grounds of appeal were the Guardianship Tribunal: 1. Made errors of fact. 2. Made findings of fact without supporting evidence. 3. Denied LQ an opportunity to view any submissions, reports or relevant information against him. 4. Made an urgent interim hearing into a final hearing after the hearing was concluded. 9 Relevance of submissions. The parties provided detailed written submissions addressing these issues. We told the parties during the hearing that we would not take into account any submissions from people who were not parties to the proceedings. We also made it clear that the majority of the material in the submissions was not relevant to any issue we had to determine and we did not intend to address those aspects of the submissions. 10 Errors of fact. LQ acknowledged, following explanation by the Appeal Panel, that if he wished to point to errors of fact that the Guardianship Tribunal had made he would need to apply for leave for the appeal to be extended to the merits of the Guardianship Tribunal's decision. We allowed him to apply for leave even though he did not indicate in his Notice of Appeal that he wished to do so. We consider that application below. 11 Findings of fact without supporting evidence. Again LQ acknowledged, following explanation by the Appeal Panel, that the Guardianship Tribunal had not made any findings, for example that he and his sister were in conflict, without there being any evidence to support those findings. The fact that LQ disagrees with the findings made by the Guardianship Tribunal does not mean that the Guardianship Tribunal has made an error of law in reaching those views. 12 Denial of procedural fairness. Grounds 3 and 4 can be summarised as alleging that the Guardianship Tribunal breached procedural fairness by: a) failing to provide LQ with an opportunity to respond to the adverse material in the written documents that were before the Tribunal; and b) failing to give LQ an adequate opportunity during the course of the hearing to respond to adverse oral evidence; and c) making a continuing guardianship order for 12 months thus depriving him of an opportunity to address the adverse material at a later date. 13 The Guardianship Tribunal acknowledged at the beginning of the hearing, that due to the urgency of the matter, they were unable to comply with the rules of procedural fairness (transcript at page 4). The Guardianship Tribunal also made several references to having a face to face hearing at a later date. LQ says he was informed on Wednesday 10th December that there was to be a telephone hearing by the Guardianship Tribunal and that it was to be an urgent interim hearing pending a full hearing. 14 It was not in dispute that, as the hearing was conducted urgently by phone, neither party had access to or knowledge of any of the material the Guardianship Tribunal had before it. Two documents, a report from the social worker at the rehabilitation hospital, Ms Anne Mearrick, and a report from the physiotherapist, Ms Alexia Matthews, were faxed to the Tribunal after the hearing and considered prior to the Tribunal giving its decision. The report from Ms Mearrick contained material which was extremely adverse to LQ. The letter, dated 10 December 2008 said, among other things, that 'it had been reported' that LQ 'had a physically abusive relationship with his daughter' and that LR had expressed concerns to nursing staff about LQ's temper. Ms Mearrick's recommendation was that it was not in LR's best interests for her to be cared for by LQ. 15 During the Guardianship Tribunal hearing LS gave evidence that there has been a 'very fraught relationship' in fact 'no relationship' between herself and her brother for at least 30 years. While they had 'come together' when their mother was in hospital with a shared intention of being there for her, in the last two weeks there had been 'bad blood' and 'angst' between them, so much so that LS said she does not come to the hospital alone to visit her mother. LS said that there would be 'no way' she would be able to visit her mother in her home if her brother were to be given authority to care for her. LS went on to tell the Guardianship Tribunal about the amount of contact her brother had had with their mother over the last 10 years and his alleged lack of insight and ability in relation to caring for her. LS also said that her brother has a 'bad temper' and is 'authoritarian' and 'dogmatic'. 16 When questioning LQ, the Guardianship Tribunal asked him what level of contact he had had with his mother and the possible effect his health status (a stent in his heart and back problems) would have on his ability to care for his mother. LQ assured the Guardianship Tribunal that there would be no problem in him looking after his mother. The Guardianship Tribunal also questioned LQ about the level of conflict between himself and his sister. He denied that his sister would have any difficulty visiting his mother if he lived with her. The Guardianship Tribunal also gave LQ an opportunity to respond to the suggestion that he had a difficult temperament. He said that the Guardianship Tribunal would have to talk to other people about whether or not that was the case. Both LS and LQ also commented briefly on a submission from LQ's estranged daughter. 17 During the hearing before the Appeal Panel, LQ agreed that a hearing had needed to be conducted urgently and that it was appropriate for the Guardianship Tribunal to make the orders they did at the time. However, he said that having made those orders without affording him procedural fairness, the Guardianship Tribunal should have re-convened to allow him a full opportunity to respond to the adverse material. Procedural fairness 18 In KV v Protective & Ors; KW & Ors v KV & Ors (No.2) [2004] NSWADTAP 48 the Tribunal discussed procedural fairness in the context of Guardianship Tribunal proceedings. The Appeal Panel concluded at [29] that the Guardianship Tribunal is obliged to give parties an adequate opportunity to respond to any adverse information that is 'credible, relevant and significant to the decision to be made'. However, that general rule will not apply where there are exceptional circumstances, such as the need for an urgent hearing: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57 at 116 per Kirby J, at 100 per McHugh J; Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 76 ALJR 966 at 991 per McHugh J; Kioa v West [1985] HCA 81; (1985) 159 CLR 550 per Brennan J at 629; J v Lieschke (1987) 69 ALR 647 per Brennan J at 653. 19 We are satisfied that there was a need for an urgent hearing in this case because LR had been in a rehabilitation hospital for three months and was due to be discharged. LS and LQ could not agree about where she should live. In circumstances where the hearing took place by phone three days after the applications were lodged, it was not practicable for the parties to be given an opportunity to respond fully to all the adverse information that was before the Tribunal. That situation was unavoidable. The question remains as to whether, in those circumstances, procedural fairness demanded that the Guardianship Tribunal make a temporary order to all the parties to properly respond to the adverse material. 20 In PRA v MA [2004] VSC 20, the Victorian Court of Appeal found that a final order made by the Victorian Civil and Administrative Tribunal was void because procedural fairness had been breached. The relevant facts of that case were that a person referred to as Maurice A applied to VCAT for various orders in relation to his mother and her estate. Following what VCAT referred to as a consistent and contumacious failure to comply with directions, an urgent hearing was convened on less than five hours' notice. Not all the parties were able to attend, but VCAT made an order revoking a power of attorney and making a temporary order appointing the State Trustee as administrator of the estate. The matter was re-listed less than a week later for the purpose of reviewing that order. However, at that hearing VCAT made it clear that the order revoking the enduring power of attorney was a final order. The Court (Batt JA, Ormiston JA and Buchanan JJA concurring) held at [39], that in the particular circumstances of this case, VCAT had denied certain parties procedural fairness by failing to give them adequate notice of the hearing. Batt JA said that rather than making a final order, VCAT should have exercised its power to grant an interim injunction restraining the existing attorneys from acting under the power except for the purpose of providing for the subject person's day to day living expenses. If it had done so the parties would have had an opportunity, in the short term, to address the issue as to whether a final order should have been made. 21 This case raises similar issues. While the Guardianship Tribunal did give LQ an opportunity to respond to most of the adverse information given by LS and others over the phone, the Guardianship Tribunal did not put to LQ any of the extremely prejudicial material in Ms Mearrick's report. That report was not before the Guardianship Tribunal during the hearing but was read before the decision was made. In deciding not to make a temporary order, the Guardianship Tribunal did not take into account the fact that LQ had been denied procedural fairness. It focused instead on the fact that it had 'considerable written material available to it and took detailed evidence from the parties'. Ultimately the Tribunal concluded that there did not appear to be a need for a short term (or a temporary) order followed by a face-to-face hearing. Although such an order should not be made if it is "practicable" to make a continuing order, it was not practicable in this case because LQ had not been afforded procedural fairness. As the Guardianship Tribunal did not give LQ an opportunity to respond to that material prior to making a decision, a temporary order should have been made. It is not necessary for LQ to prove that the adverse material affected or could have affected the decision: Kioa v West (1985) 159 CLR 550. Even making it clear that adverse material will not be relied on will not normally excuse a tribunal from compliance with the rules of procedural fairness: Youssef v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 550. 22 Having found an error of law, there is no need for us to consider whether to grant leave for LQ to appeal against the merits of the Tribunal's decision. In any case, apart from some minor and/or inconsequential factual errors in the Tribunal's reasons for decision, LQ said that it was the fact that he was denied procedural fairness that justified the appeal being heard on the merits. The matter should be remitted to the Guardianship Tribunal to re-determine in accordance with these reasons. Order 1. The decision of the Guardianship Tribunal to make a continuing guardianship order in relation to LR for a period of 12 months and to appoint the Public Guardian as LR's guardian is set aside. 2. The matter is remitted to be decided again by a differently constituted panel, with the hearing of further evidence. 3. These orders do not come into effect until 60 days after the date of this decision.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
LQ
Public Guardian
[2004] VSC 20
(2001) 206 CLR 57
(2002) 76 ALJR 966
(1985) 159 CLR 550
(1987) 69 ALR 647
The decision of the Guardianship Tribunal to make a continuing guardianship order in relation to LR for a period of 12 months and to appoint the Public Guardian as LR's guardian is set aside. The matter is remitted to be decided again by a differently constituted panel, with the hearing of further evidence. These orders do not come into effect until 60 days after the date of this decision.