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[2009] ACTSC 28
Supreme Court of the ACT
2009-03-27
Original judgment source is linked above.
SABAH OMARI v MOHAMED OMARI, MUSTAFA OMARI AND GUARDIANSHIP AND MANAGEMENT OF PROPERTY TRIBUNAL
[2009] ACTSC 28 (27 March 2009)
MENTAL HEALTH - guardians - powers on appointment - supervision and directions.
ADMINISTRATIVE LAW - tribunals - jurisdiction of Guardianship and Management of Property Tribunal - procedures - evidence - cross-examination.
Domestic Violence and Protection Orders Act 2001 (ACT)
Human Rights Act 2004 (ACT), ss 12, 13, 15(2) and 18(2)
Mental Health Act 1959 (UK), s 34(1)
ACT Civil and Administrative Tribunal Act 2008 (ACT), s 7
Legislation Act 2001 (ACT), s 130, 145, 160
Court Procedures Rules 2006 (ACT), r 5103
ACT Civil and Administrative Tribunal (Transitional Provisions) Regulation 2009, Pt 15
Hayes S and Hayes R, Mental Retardation, Law Policy and Administration (Law Book Company, 1982)
Forbes JRS, Justice in Tribunals (2nd ed, Federation Press, 2006)
Bennion FAR, Statutory Interpretation (Butterworths, 1984)
R v Australian Broadcasting Tribunal and Ors; ex parte Hardiman and Ors [1980] HCA 13; (1980) 144 CLR 13
Newcombe v AME Properties Ltd and Anor (1995) 14 WAR 259
City of Collingwood v State of Victoria and Anor [No 2] [1994] VicRp 46; [1994] 1 VR 652
R v Cockshott & Ors [1898] 1 QB 582
R v St Edmundsbury and Ipswich Diocese (Chancellor) and Anor; Ex parte White and Anor [1947] 2 All ER 170
Taylor v Clemson and Vaughan [1842] EngR 264; (1842) 2 QB 978; 114 ER 378
Johnstone v Commonwealth of Australia (1979) 52 ALJR 350
Re Laycock and Australian Securities Commission (1997) 44 ALD 713
MN v AN (1989) 16 NSWLR 525
R v Gyngall [1893] 2 QB 232
Barristers' Board of Western Australia v Tranter Corporation Pty Ltd [1976] WAR 65
Mifsud v Campbell (1991) 21 NSWLR 725
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
R v The War Pensions Entitlement Appeal Tribunal & Anor; ex parte Bott [1933] HCA 30; (1933) 50 CLR 228
O'Rourke v Miller [1985] HCA 24; (1985) 156 CLR 342
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Attorney-General v Marquis of Ailesbury and Ors (1887) 12 App Cas 672
Strangwayes v Read [1898] 2 Ch 419
Northern Territory of Australia v GPAO and Ors (1999) 196 CLR 553
Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163
Collins v Minister for Immigration and Ethnic Affairs [1981] FCA 147; (1981) 58 FLR 407
Australian Broadcasting Tribunal v Bond & Ors [1990] HCA 33; (1990) 170 CLR 321
Comcare Australia v Lees [1997] FCA 1415; (1997) 151 ALR 647
Townsend v Minister for Immigration and Multicultural Affairs [2001] FCA 492
Hill v Repatriation Commission [2005] FCAFC 23; (2005) 218 ALR 251
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Minister for Aboriginal Affairs & Anor v Peko-Wallsend Limited and Ors [1986] HCA 40; (1986) 162 CLR 24
Australian Hotels Association v Copyright Tribunal [2008] FCAFC 37; (2008) 100 ALD 490
Wilson v County Court (Vic) [2006] VSC 322; (2006) 14 VR 461
Australian Broadcasting Tribunal v Bond & Ors[1990] HCA 33; (1990) 170 CLR 321
Gibb v The Commissioner of Taxation of the Commonwealth of Australia [1966] HCA 74; (1966) 118 CLR 628
Cowan v Stanhill Estates Pty Ltd [1966] VicRp 82; [1966] VR 604
Parkes Management Ltd v Perpetual Trustee Co Ltd & Anor [1979] 1 NSWLR 274
Hilton v Wells & Ors [1985] HCA 16; (1985) 59 ALJR 396
Duff v McCulloch and Ors (1985) 11 FCR 237
Kizon v Palmer & Ors (1997) 72 FCR 409
Sullivan v Department of Transport (1978) 20 ALR 323
House v The King [1936] HCA 40; (1936) 55 CLR 499
ON APPEAL FROM THE GUARDIANSHIP AND MANAGEMENT OF PROPERTY TRIBUNAL
ON APPEAL FROM THE GUARDIANSHIP AND MANAGEMENT OF PROPERTY TRIBUNAL
AND: GUARDIANSHIP AND MANAGEMENT OF PROPERTY TRIBUNAL
1. The time within which the appellant may appeal against the decision of the Guardianship and Management of Property Tribunal on 2 April 2008 be extended to 3 July 2008.
2. The direction of the Guardianship and Management of Property Tribunal made on 2 April 2008 that the directions it had made on 18 December 2006 be unchanged is set aside as the fifth direction made on 18 December 2006 was beyond the power of that Tribunal to make.
3. The application of Sabah Omari for directions to Mohamed Omari and Mustafa Omari that she be permitted to visit Mrs Mariem Omari on the following hours:
Monday - from 4pm until the mother is comfortable and asleep
Wednesday - from 4pm until the mother is comfortable and asleep
be remitted to the Guardianship and Management of Property Tribunal to be dealt with according to law.
4. Each party bear their own costs of this appeal.
1. The common law has long recognised that some people may be so affected by a physical, mental, psychological or intellectual condition that their decision-making is impaired and as a consequence someone has to be appointed to look after their interests. When this was statutorily recognised in the ACT, it was also recognised that this was such a significant power that it required such powers of the appointee to be no more restrictive than is necessary to achieve the purpose of the appointment, and made the appointment subject to supervision of the appointing tribunal.
2. In these proceedings, the power of the appointing tribunal and its relationship to the appointed guardian, especially as to supervision, is at issue. The appellant, in particular, challenges the Tribunal's directions about when she may visit her mother. To understand how these issues arise, it is appropriate to set out some background as far as I can ascertain it from the material in the Appeal Book.
3. On 4 March 2002, Mr Mohamed Omari and Mr Mustafa Omari, the first and second respondents to this appeal, were appointed "plenary Guardians" to act jointly or severally and, together with the Public Trustee of the Australian Capital Territory, were appointed jointly and severally as "plenary Managers" of Mrs Mariem Omari, the "protected person" as defined in Guardianship and Management of Property Act 1991 (ACT) (the Guardianship Act)).
4. I am not entirely sure what is meant by "plenary" in these appointments. That word does not appear in the Guardianship Act. Sections 7(2) and 8(2) of that Act give the Guardianship and Management of Property Tribunal (the Tribunal) the power to specify the powers of a guardian and of a manager and I assume that this is intended to give the appointees the fullest powers available under the Act.
5. In the order appointing the guardians, the Tribunal also gave the following directions:
6. I have no information about the Domestic Violence Orders referred to in direction 3 above. It appears, however, that there is significant dispute between Mrs Omari's children, at least the first and second respondents on the one hand and the appellant and Ms Mona Omari on the other, described elsewhere as "bad blood" between them.
7. Mrs Omari has at least four children, the first and second respondents, the appellant and Ms Mona Omari. There was some reference in the appeal book to another daughter, Halima, and there was also a reference in the appeal book to eight siblings. It seems, however, that these proceedings essentially involve the appellant and the first and second respondents only.
8. The Tribunal further ordered that by 31 May 2002 it should review the Guardianship Order, by which I understand the Tribunal to mean the order appointing the first and second respondents as guardians. "Guardianship Order" is, however, a useful term and I shall use it to mean the relevant order appointing the guardians.
9. There followed, then, a series of orders by which the first and second respondents' appointment as "plenary Guardians" jointly and severally was renewed and directions made or continued: 20 May 2002, 22 July 2002, 21 July 2003, 1 March 2004, 24 May 2004, 13 September 2004, 26 November 2004, 15 June 2005, 5 December 2005 and 18 December 2006.
10. It is not entirely clear why so many appearances were necessary though that may be to deal with the disputes between the guardians and their siblings. In any event, on 18 December 2006, the Tribunal ordered that the Guardianship Order be reviewed within three years (s 19(2) of the Guardianship Act).
11. After the first Guardianship Order was made, Mrs Omari was admitted as a resident of Villagio Sant' Antonio, a multicultural retirement village in Page in the Territory, in March 2002.
12. On 31 May 2002 the Magistrates Court in proceedings numbered DV 02/320 made an order amending a Domestic Violence Order (made for two years on 17 May 2002) under the Domestic Violence and Protection Orders Act 2001 (ACT) against Ms Sabah Omari at the application of Mrs Omari (by her next friend Mr Mohamed Omari, the First Respondent). I refer to the original order as amended as the Protection Order. Relevant provisions of the Protection Order as amended were:
2. SABAH OMARI be prohibited from:
(a) being on the premises at VILLAGIO NURSING HOME, 35 BURKITT STREET, PAGE, ACT where the aggrieved person lives, EXCEPT IN ACCORDANCE WITH WRITTEN ORDERS AND DIRECTIONS OF THE GUARDIANSHIP AND MANAGEMENT OF PROPERTY TRIBUNAL, ACT;
(b) being within 200 metres of the aggrieved person, EXCEPT IN ACCORDANCE WITH WRITTEN ORDERS AND DIRECTIONS OF THE GUARDIANSHIP AND MANAGEMENT OF PROPERTY TRIBUNAL, ACT;
(c) contacting the aggrieved person, EXCEPT THROUGH A SOLICITOR; EXCEPT IN ACCORDANCE WITH WRITTEN ORDERS AND DIRECTIONS OF THE GUARDIANSHIP AND MANAGEMENT OF PROPERTY TRIBUNAL, ACT.
13. The materials in the Appeal Book were deficient. I did not, for example, have a copy of the original order made on 17 May 2002, but only the amending order. Then, I only had what appears to be the first of at least two pages of the amending order. The original order was said to be made for two years. The amendment did not affect this. Accordingly, I am prepared to find that it expired on 16 May 2004.
14. It was suggested in submissions that a similar order was made against Ms Mona Omari but there is no material in the Appeal Book to enable me to say that; in any event, it may not matter at all, since she is not a party to this appeal.
15. The next order made by the Tribunal after the making of the Protection Order was made on 22 July 2002. Curiously, it included precisely the same directions as those set out in par [5] above with one wording change mentioned below, including the rather odd reference to "the two siblings we have been speaking about" in direction number 1. Even more curiously, was the fact that the third direction was also made (though it referred to orders "scheduled for review on 31 July 2002"). Whether this refers in some way to the Protection Order, I cannot tell. There was nothing in the Protection Order which required a review on 31 July 2002.
16. It would appear, then, that as at 22 July 2002, no "written... directions" had been given by the Tribunal that would fall within pars 2(a), (b) or (c) of the Protection Order.
18. Regrettably, I do not have any information about any amendment to the Protection Order made on 22 April 2003, or indeed on any other occasion.
19. However, if pars 2(a), (b) and (c) of the Protection Order had not been amended, then the direction I have set out at par [17] cannot be "written... directions" of the Tribunal contemplated in those paragraphs. Apart from the direction of the Tribunal "[t]hat the present Directions dated 22 July 2002 are to continue" no other relevant directions or orders were made on that date by the Tribunal.
20. Thus, it appears there were no visiting arrangements as the Protection Order did not make them, nor did the Tribunal's directions. More curiously, the Tribunal's direction set out at par [17] is not meaningful since the Protection Order does not allow any visits to occur; indeed, it prohibits them.
21. On 24 May 2004, the Tribunal directed, relevantly:
22. It was not specified who was to obtain the report referred to in direction 5, a common problem where such orders or directions are expressed in the passive voice.
23. Direction 3 clearly amounted to "written... directions" as contemplated by the Protection Order and was ancillary to the direction to the guardians in direction 1.
24. This was, however, the last order made by the Tribunal before the Protection Order expired. It would, therefore, apply for only six days.
25. Notwithstanding this, on 13 September 2004, the Tribunal directed that "the old Directions [whatever that might mean] are to remain." It also directed:
26. Then, on 26 November 2004, the Tribunal gave the following directions:
27. It is by no means clear what power the Tribunal had to make these directions, particularly the third direction.
28. On 15 June 2005, the Tribunal gave further directions. These included:
29. It is not entirely clear to me what power the Tribunal had to make at least direction 7.
30. On 5 December 2005, the Tribunal directed that "Directions dated 15 June 2005 continue". It is not clear whether that meant that the Registrar of the Tribunal had not written to the Nursing Home as contemplated by direction 7 or whether a further contact was required.
31. It appears that the Tribunal may have given directions on 5 June 2006, but I do not have a copy of any such directions.
32. On 18 December 2006, the Tribunal gave further directions. These included:
33. Although not the subject of direct challenge, it is the directions made on this day, specifically direction 5, that is the real subject of the challenge in this appeal.
34. From what I can tell, the Appellant made an application on 9 October 2007 for the Tribunal to review the directions of 18 December 2006. There is a document in the appeal papers headed "Minute of Orders Sought" dated that day, signed by the Appellant and dated as received by the Mental Health Tribunal [sic] on that day. It may be that, although this document was clearly headed "In the Guardianship and Management of Property Tribunal of the A.C.T.", the counter officer at the Magistrates Court, where most ACT Tribunals have had their registry, simply picked up the wrong stamp.
35. It is not clear what happened next but it was not until 2 April 2008 that the application was heard. On that day, the President announced after the hearing that "[t]he decision of the Tribunal is the arrangements on the direction will remain in place".
36. A formal document of the Tribunal was then prepared and signed by a Deputy Registrar and dated 2 April 2008. It provides as follows:
37. Written reasons over the signature of the President of the Tribunal were delivered on 5 June 2008.
38. Thus, while the direction of the Tribunal of 2 April 2008 is currently the operative one, it merely confirms the earlier directions of 18 December 2006, which become, therefore, relevant on the appeal as noted in par [33].
40. Appeals to this Court from "an order, direction or decision of the tribunal" may be instituted under s 56 of the Guardianship Act as it was at 3 July 2008 (see reprint 21, 26 August 2008). An appeal on a question of law may be brought as of right; on any other question, the appeal may only be brought with this Court's leave: s 56(2). No leave was sought in this case, so the appeal is limited to a question of law. Indeed, Mr W Arthur, counsel for the appellant, expressly confirmed this in argument.
41. As the Guardianship Act makes no other provision, the time within which the appeal is to be brought is governed by r 5103 of the Court Procedures Rules 2006 (ACT). In this case, the time is 28 days from the date the order appealed from was made.
42. The order was actually made on 2 April 2008. The reasons, however, were not delivered until 5 June 2008 but they are not operative for purposes of an appeal. The Appeal was instituted by filing a notice of appeal on 3 July 2008, that is on the 28th day after the date on which the reasons were delivered, but well outside the time limited for appeal under the Rules.
43. No point was taken about this, presumably because the first and second respondents were unrepresented. The court itself, of course, should have been alive to and raised this issue but did not. I only realised the issue when preparing these reasons.
44. In the circumstances, given the importance of the issues raised on the appeal, particularly as the parties will have to continue to deal with the question of visits to Mrs Omari for some time to come, I consider that it is appropriate to extend the time within which the appeal can be brought. I consider that the costs of such an application is met insofar as is necessary with the order for costs of the appeal.
45. The appellant challenged the direction of 2 April 2008 insofar as it confirmed the directions made on 18 December 2006 and, by implication, those directions referred to in par [32] above and the hearing on 2 April 2008. There were a number of grounds for the challenges. The first and second respondents were unrepresented, though they did appear personally and make written and oral submissions. The third respondent, the Tribunal, was not represented. That is neither unusual nor inappropriate: R v Australian Broadcasting Tribunal and Ors; ex parte Hardiman and Ors [1980] HCA 13; (1980) 144 CLR 13 at 35-6.
46. I shall deal with the appellant's arguments in turn.
1. The Tribunal had no power to make an order restricting the time that the appellant could spend with her mother after the Protection Order had expired.
47. The appellant initially suggested that the Protection Order gave the Tribunal power to give the directions it did about the periods when the appellant (and her sister) might visit Mrs Omari. Thus, the appellant submitted, when the Protection Order expired, the Tribunal had no further power to give such directions. It was submitted that it followed, accordingly, that the directions under challenge were beyond the power of the Tribunal.
48. This argument commences on a false premise. The Magistrates Court was, like all Australian courts, created by statute and its powers are determined by the statute creating it or giving it jurisdiction: Newcombe v AME Properties Ltd and Anor (1995) 14 WAR 259 at 266, 125 FLR 67; City of Collingwood v State of Victoria and Anor [No 2] [1994] VicRp 46; [1994] 1 VR 652 at 662-3; R v Cockshott & Ors [1898] 1 QB 582. It is an inferior court and thus its jurisdiction over any subject is not to be presumed but must appear clearly: R v St Edmundsbury and Ipswich Diocese (Chancellor) and Anor; Ex parte White and Anor [1947] 2 All ER 170 at 172; Taylor v Clemson and Vaughan [1842] EngR 264; (1842) 2 QB 978 at 1031-2; [1842] EngR 264; 114 ER 378 at 401.
49. There is nothing in the Magistrates Court Act 1930 (ACT) nor the Domestic Violence and Protection Orders Act 2001 (ACT) which gives the Magistrates Court power to give such a jurisdiction to the Tribunal. Thus, there is no power in the Magistrates Court to invest the Tribunal with a jurisdiction it would not otherwise possess: Johnstone v Commonwealth of Australia (1979) 52 ALJR 350 at 352; [1979] HCA 13; 143 CLR 398.
50. That does not mean, however, that the Magistrates Court may not include in an order a reference to other proceedings. That is not infrequently done, for example, in an order for bail in which the conditions might make reference to a protection order or orders of the Family Court of Australia. Similarly, protection orders might make similar reference. That is not, however, to give the court making those other orders any jurisdiction.
51. The question is whether the Tribunal had power to give the directions it did give. Thus, the appellant's ground really has nothing to do with the Protection Order as such, despite the way it was phrased. On this argument, the jurisdiction of the Tribunal was in no different position while the Protection Order was in force than after it expired.
52. The appellant handed up a comprehensive list of the powers of the Tribunal set out in the Guardianship Act and this was helpful. It was an important exercise, for any power of the Tribunal must be found in the Act. To use the words of Deputy President B M Forrest of the Commonwealth Administrative Appeals Tribunal in Re Laycock and Australian Securities Commission (1997) 44 ALD 713 at 717, about that tribunal but which are equally applicable to the Tribunal,
The tribunal does not have an inherent or general jurisdiction. The tribunal has jurisdiction to review decisions only where an enactment makes provision for applications to the tribunal for review of decisions made in exercise of powers conferred by enactment...
53. The Tribunal has the powers given to it by the Guardianship Act and any jurisdiction to give such directions must be found in that Act.
54. There is no provision of that Act which gives the Tribunal power or jurisdiction to regulate the visiting hours of people wishing to visit a protected person. Certainly, the Act does not give power or jurisdiction to make orders or give directions to persons other than the guardians or managers of the protected person, except insofar as it has power to adjust transactions (s 71(2)) or to restrain property transactions (s 72(1)).
55. Thus, the directions to the appellant and to the nursing home (for example, see pars [25] and [26] above) are beyond power. The apparently general directions to the world at large (as in pars [21] and [26]) are also beyond power.
56. The directions as to visiting hours, however, would seem to be in a somewhat different category.
57. The appointment of the first and second respondents as guardians gave them all the powers that they could have been given under the Guardianship Act. The Act does not limit the powers that may be given but s 7(3) specifies some powers that may be included. These include the power to decide where, and with whom, Mrs Omari is to live. By using the word "plenary" in reference to the appointment, the Tribunal must be taken to have given the first and second respondents all the powers that they could have been given.
58. This is not necessarily a desirable way of expressing such a power. The appointment is a serious interference with the rights of the protected person, infringing a number of rights that include, for example, ones that the Human Rights Act 2004 (ACT) provides that a protected person enjoys: see ss 12, 13, 15(2) and 18(2) at least. That interference can, of course, be justified in appropriate circumstances: Johnson v United Kingdom (1997) 27 EHRR 296. That the powers to interfere with such rights should be expressly considered by the Tribunal and provided for is at the very least desirable. It is also in accordance with the principles that are to be applied by a person who makes a decision in relation to a protected person: s 4(2)(d) of the Guardianship Act.
59. It would appear that plenary powers of a guardian confer all the common law powers that were possessed of a committee. The difficulty with that is that the exact nature of those powers is by no means certain: see MN v AN (1989) 16 NSWLR 525 at 534-537.
60. Doing the best I can, and relying on the express power of deciding where, and with whom, the protected person is to live (s 7(3)(a) of the Guardianship Act), I consider that the guardians in this case under the appointment made by the Tribunal have power to decide who may have access to Mrs Omari.
61. I am fortified in this conclusion by the close similarity between the guardianship of parents in respect of children and guardians in respect of persons with impaired decision-making ability. See Hayes S and Hayes R, Mental Retardation, Law Policy and Administration (Law Book Company, 1982) pp 217-223. Although in many ways different, I have also considered the Mental Health Act 1959 (UK), where s 34(1) gave to a guardian of a person suffering from a mental illness or severe abnormality that warrants guardianship such powers in relation to that person as would be exercisable as if the guardian were the father of the patient and the patient were under the age of 14 years. These powers were very wide. As Lord Esher MR said in R v Gyngall [1893] 2 QB 232 at 239 "(w)here the common law jurisdiction was being exercised ... the right of a parent as against other persons was absolute".
62. That the prohibition against disciplining a protected person under s 7B of the Guardianship Act was seen as necessary is, by implication, consistent with this approach. While the approach to guardianship has changed significantly since 1959, it is clear that the powers of a guardian at common law were potentially very wide.
63. In my view, a "plenary" appointment as guardian would include, unless restrained or excluded, the power to decide who may or may not have access to the protected person.
64. The question, then, is what to make of the challenged direction in the light of the width of the power, relevantly in relation to the persons who may have access to Mrs Omari, that the Tribunal has given to the first and second respondents.
65. The Tribunal has power under s 16(1) of the Guardianship Act to give directions to a guardian on the application, apparently, by any interested person. The guardian must comply with any directions given and contravention, without reasonable excuse, is made an offence punishable by a fine or imprisonment or both: s 16(2). There is no apparent limit on the subject matter of such directions, save that they are "about the exercise of his or her [that is, the guardian's] functions or powers".
66. This is obviously an appropriate brake on the wide powers of guardians and can be used to resolve disputes between the guardians and others who may have an interest in the affairs or well-being of the protected person.
67. While the direction complained of was in the form of a declaration of general application, the substance could, in my view, have been included in a direction to the guardians to require them to permit access at the specified hours. A general direction, as here, however, would be seen as binding, for example, on people not subject to direction by the Tribunal, such as the management of the hostel. That tells against its validity.
68. Since the Tribunal's jurisdiction to make the direction was not patent on the face of it, it was ultra vires: R v St Edmundsbury and Ipswich Diocese (Chancellor) and Anor; ex parte White and Anor at 172; Taylor v Clemson and Vaughan at 1031-2; 401. Despite the nature of the Tribunal, it is presided over by a Magistrate, and its orders and directions should comply with the requirement to make them in accordance with the law.
69. Thus, I propose to set aside the direction but to hold that if the Tribunal were to give a direction to the first and second respondents that they permit the appellant to have access to Mrs Omari at the times specified, it would have power to do so.
70. Nevertheless, lest this approach be misunderstood, I hold that the Tribunal has no power to give directions to Sabah Omari nor to the Village Sant' Antonio Hostel and Retirement Village. Whilst I can empathise with the Tribunal wishing to resolve the obvious disputation between the children, it can only do so within its jurisdiction.
2. The Tribunal failed to record the evidence it received to which it had regard in arriving at its decision.
71. The proceedings before the Tribunal were very informal. This accords with s 37(2) of the Guardianship Act (as it was at 3 July 2008) which directs the Tribunal to conduct its inquiries "informally and with as little regard to legal technicalities as is just". Of course, as s 37(3) notes, the Tribunal is bound by the rules of natural justice.
72. It is also relevant to note s 38 of the Act which is in a form common to such tribunals as the Tribunal. It provides:
(1) The tribunal is not bound by the rules of evidence but may inform itself on any matter relevant to an inquiry in the way it considers appropriate.
(2) Evidence in an inquiry may be given orally or in writing.
(3) The presidential member may require a person appearing before the tribunal at an inquiry to answer questions to do 1 or more of the following:
(a) to take an oath;
(b) to answer a question relevant to the inquiry;
(c) to produce to the presidential member a document or other thing relevant to the inquiry.
Note: Oath includes affirmation and take an oath includes make an affirmation (see Legislation Act, dict, pt 1).
1"> 73. The articulation of this ground of challenge is a little confusing. It was, I regret, not much clarified in oral submissions, which included the following:
MR ARTHUR ... Ground 2, the tribunal failed to follow any procedures for recording what evidence it received and had regard to in arriving at its decision. Your Honour has at page 7 of the Appeal Book the decision of the tribunal. It was relatively brief. Now, the tribunal by section 37 of the legislation, is directed to conduct inquiries informally and with as little regard to legal technicalities as is just. That's a common provision that tribunals are directed to follow. But we say in this case the informality was so great that it probably crossed the line between informality and proper procedure....
But in this case, your Honour, we say that the tribunal crossed the line, as it were, because there were - and if I just simply take your Honour to the index to the Appeal Book, on the second page of the index there are documents headed "Affidavits and Statements". Now, they are included in the appeal book because they were referred to or documents placed before the tribunal.
Now, the tribunal didn't ever identify those documents as exhibits. We say while the tribunal might conduct its proceedings informally it ought to at the very least identify the documents that it has regard to in making its decision...
74. References was made to Forbes J R S, Justice in Tribunals (2nd ed, Federation Press, 2006) in particular to pp 200 to 228. This part of the work encompassed sections on "Rules of Evidence Tribunals", "Corroboration", "The Principle of Relevance", The Rules of Privilege", "Similar Facts", "Hearsay Evidence in Tribunals" and "Is Cross-Examination Part of Natural Justice?". I have read the pages and they do not appear to address the issue of recording evidence or managing it in that sense.
75. Mr Arthur pointed out that certain documents were not identified as exhibits. It does not seem to me that this is an error of law. Affidavits are filed and read: Barristers' Board of Western Australia v Tranter Corporation Pty Ltd [1976] WAR 65 at 67. They are not ordinarily tendered as exhibits, unless they contain an admission to be relied upon by another party. As was stated by Terry Mehigan in "Practice Note. Using an Opponent's Affidavit" (1986) 2 Aust Bar Rev 279:
Where a direction has been given that the trial of a proceeding is to be primarily by way of affidavit evidence, it is not appropriate to tender an affidavit or part of an affidavit sought to be relied upon as a documentary exhibit. The correct procedure is to read the affidavit, except where it is sworn by a party or by a person having authority to make admissions on a party's behalf... Whether or not a direction is given that the trial proceed upon affidavit evidence, the tender of an affidavit or part of an affidavit is permissible where an admission by a party or a vicarious admission is relied on.
76. The real complaint, though the ground was not clearly formulated to disclose it, seems to be that in the reasons of the Tribunal, taken with the transcript of the proceedings, it was not easy to see the material on which the Tribunal had relied and that which it had rejected.
77. While it may be good practice and helpful to recite the affidavits and statements read and the witnesses heard, I am unable to accept that, in itself, and without more, failure to do so is an error of law. Samuels JA pointed out in Mifsud v Campbell (1991) 21 NSWLR 725 at 728
It is plainly unnecessary for a judge to consider all the evidence ... or to indicate which of it is accepted or rejected. The extent of the duty to record the evidence given and the findings made depend, as the duty to give reasons does, upon the circumstances of the individual case.
78. If that is the extent of the obligation of a court, the obligation of a Tribunal can be no higher and may well be somewhat less.
79. As Meagher JA said in Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443:
...reasons need not necessarily be lengthy or elaborate... No mechanical formula can be given in determining what reasons are required. However, there are three fundamental elements of a statement of reasons, which it is useful to consider. First, a judge should refer to relevant evidence. There is no need to refer to [it] in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to ... an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it.
80. It seems to me that, in construing the reasons of the Tribunal for this purpose, one can have regard to the transcript of the argument and hearing to show what material the Tribunal had before it and then evaluate whether an omission to mention it (that is the facts or material disclosed by the evidence, not necessarily the document or witness) means that it was overlooked or the Tribunal failed to give it consideration.
81. In this case, Mr Arthur referred to three matters: the affidavits of the appellant, an affidavit of Mr Alexander Francis Arnel and a statement of the first respondent.
82. Apart from noting that the Tribunal was clearly aware of Mr Arnel's affidavit and had expressed reasons in argument for not relying on it, I will say no more about it, since it is dealt with below under ground 4 at pars [97]-[106].
83. The affidavit of the appellant covers three pages with one and a half paragraphs on a fourth page. The first two pages deal with the history of the matter and one would not expect that to be recounted or even necessarily referred to in the reasons especially in the light of the prior proceedings. In the event, the statement in the reasons, namely that "[t]here is a lengthy history of bad blood between the children of Mariem Omari" is quite sufficient reference to this material.
84. The other page and a bit make the appellant's case. They basically set out what the appellant could do for her mother. The only time specific reference, however, is to the opportunities provided by Ramadan and the Eid festivities. The other matters are all matters of general care and contact that the increased hours could allow the appellant to provide. In the light of the history of the matter, the regular hearings of the Tribunal and the fact that at least two of those hearings were expressed to be to consider a review sought by the appellant, I am satisfied that such matters and the capacity of the appellant to provide the suggested care are not new. Thus, while perhaps more dismissive than might have been desirable, the Tribunal's comment that "Sabah Omari [the appellant] might feel better about having more access to her mother" together with the later reference to "Sabah isn't the only person who can care for her mother" shows that her affidavit did receive consideration.
85. As to the first respondent's statement, pars 2 to 9 rehearse the history, to which the brief reference of the Tribunal I have referred to above is sufficient. Paragraphs 10 and 11 raised serious issues on which the Tribunal would not be able to make a proper finding. They were probably irrelevant to the issue before it and it would have been inappropriate to detail or have regard to them in the Tribunal's reasons, a review of which shows no direct or indirect evidence of it having done so. The other paragraphs are in effect a joinder of issue on the application. There is no error of law in the Tribunal failing to refer to the statement expressly or other than in the very indirect way identified.
3. The Tribunal erred in refusing to allow cross-examination of Mrs Alice Whittle.
86. Mrs Whittle was at the time the Chief Executive Office/Manager of the hostel where Mrs Omari resides. It appears that the Tribunal arranged for an affidavit to be obtained from her. Parts of the affidavit were relevantly uncontroversial about Mr Omari's situation.
87. There were, however, some points that were more controversial. There were references to the appellant and to the impact on staff of her visits. There was a reference to the appellant coming early, staying late and moving about the hostel contrary to staff wishes. Mr Arthur also suggested that Ms Whittle was inconsistent or playing favourites in that one sister was allowed to stay to assist feeding, but the appellant's wish to do so was regarded as making a difficulty for the staff. The appellant wished to challenge these assertions which the appellant denied.
88. It has been held as long ago as 1933 in R v The War Pensions Entitlement Appeal Tribunal & Anor; ex parte Bott [1933] HCA 30; (1933) 50 CLR 228 (Bott's Case) that a tribunal is not bound to afford the parties before it cross-examination of witnesses. The case is also authority for the proposition that a Tribunal may act on written or oral, sworn or unsworn testimony.
89. While there have been many cases dealing with this issue since then, and some have taken a different view, the summary of Dr Forbes (Forbes J R S, Justice in Tribunals (2nd ed, Federation Press, 200) at p 225), after an exhaustive analysis of the cases, was as follows:
It is submitted that the present balance of authority is against a common law right of cross-examination in tribunals. But some judges have taken a different view, usually upon an ad hoc basis, and with little or no discussion of countervailing considerations. One can but sympathise with legal advisers trying to predict judicial attitudes in these cases.
90. Dr Forbes placed reliance on the most recent High Court decision on the matter, O'Rourke v Miller [1985] HCA 24; (1985) 156 CLR 342. Though not a particularly recent case, it was referred to more recently, though rather more generally than expressly in respect of this issue, in Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 at 185 with apparent approval.
91. In O'Rourke v Miller, Gibbs J, with whom Mason J agreed, after referring to cases where cross-examination was permitted, said at 353:
Those were cases in which there was a hearing before a tribunal which refused to allow the cross-examination of persons who in the one case had given evidence and in the other had made hearsay statements and the decisions depended, as all cases of this kind do, on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal was acting and the subject-matter being dealt with ... Even when there is a hearing before a tribunal it does not follow that a person affected necessarily has a right to cross-examine witnesses ...
92. In this case, the evidence of Mrs Whittle was sought by the Tribunal. That of itself does not mean that cross-examination should be permitted: Bott's Case. The evidence, however, was quite influential as can be seen from the Tribunal's reasons, though not completely determinative; other issues were also very relevant. Nevertheless, the Tribunal did expressly quote from Ms Whittle's affidavit and the passage was one about which Mr Arthur wished to cross-examine her.
93. At the end of the day, I am not persuaded that the Tribunal is required to permit cross-examination as a matter of course but in this case, the evidence was so central, and seen by the Tribunal as such, and there was a reasonable basis that showed some, if not apparent inconsistency, at least doubt about the effect of the evidence, that I consider the Tribunal should have permitted cross-examination of Mrs Whittle on this issue, but not necessarily generally. The Tribunal had power to restrict cross-examination and to deny it on other matters where it could not be shown to have a particular, justified forensic purpose.
94. Mr Arthur also suggested that Mrs Whittle should have been cross-examined about the proposal to move Mrs Omari into the dementia unit of the hostel. I do not accept that. This was a decision entirely within the power of the first and second respondents as guardians (see ss 7(3)(a) and (e) of the Guardianship Act). There was no challenge to the decision. There was no application before the Tribunal for directions (s 16) or advice (s 18) about this issue. It was not an error of law to refuse to permit cross-examination on this issue.
95. The Tribunal does not have a "roving commission" to protect the best interests of a protected person. It protects those interests by appointing a guardian. If an issue arises whereby a guardian needs assistance to decide what to do, he or she can seek advice (s 18) or he or she, or any other interested person, may seek directions (s 16). The Tribunal may also hold an inquiry at any time on application or of its own initiative and, in any event, must do so at least every three years (s 19). The latter inquiry, however, is even then not a "roving commission" but directed to determining whether an order appointing a guardian should be varied or revoked because the protected person is no longer in need of guardianship, or to remove a guardian under s 31 for cause.
4. The Tribunal erred in giving little or no weight to the evidence of Mr Arnel
97. Mr Arnel is a retired psychologist. Until his wife's death "recently" (and no better date was mentioned) his wife occupied a room opposite to that of Mrs Omari in the hostel. Mr Arnel visited his wife every day and spent most of the day with her.
98. Although a psychologist, there was no evidence that he had examined Mrs Omari or that he was other than generally aware of what he called "the ill-feeling that seems to exist between family members". His observations were, in my view, those of an observant and intelligent layman who saw the effect on Mrs Omari of visits by her daughters.
99. One difficulty I had with his affidavit is that he refers in it simply to "Mrs Omari's daughters", without reference to their names; indeed, he may not know them. It is clear that there is at least one daughter whose access has not been subject of a direction by the Tribunal. It is unclear whether this daughter is included in his observations. I have no information about the other three children who may or may not come within this description. There was a reference in the material before me to Fatima, so there is at least one other daughter than the three I have mentioned so far.
100. In my view, it was not correct to describe Mr Arnel's observations as those of an expert witness or, as Mr Arthur did, "in the nature of expert evidence, something not to be lightly disregarded".
101. The Tribunal, in argument, dealt with Mr Arnel's evidence in this way. It said:
THE PRESIDENT: Well, I need to be assured Mr Arnell [sic], who is a retired psychologist, I think, was aware of all the problems in this family and just isn't giving an opinion off the top of the head. I mean, he might be expert, but it's like asking a psychiatrist to give an opinion without knowing the background and I've tried to do this rightly or wrongly, whatever the rights and wrongs of it are, and both sides will blame the other. When I say both sides, the differences in the family, and I'm not worried about that.
102. There was no reference in the Tribunal's reasons to the evidence of Mr Arnel. Mr Arnel's evidence showed, if accepted, that when visited by her daughters (there was no reference one way or another to her sons) Mrs Omari "comes alive" but otherwise she is isolated and looks "agitated and disconsolate".
103. This seems to me to be relevant evidence which the Tribunal should have considered, not as expert evidence, but as ordinary evidence of observation. What the Tribunal would make of it is a matter for it and, with the issues I have identified, it may have little weight ultimately.
104. Part of the problem seems to be that the Tribunal may have been understandably misled in focussing on the issue which it had before it. The actual issue before it was whether to issue a direction, enforceable by criminal sanction, to the guardians it had appointed to look after the best interests of Mrs Omari, as to how they should or must carry out their functions and powers so far as Mrs Omari and the allowable visitors were concerned.
105. That decision involved a range of factors. These include the need to have regard to the operation of the hostel where Mrs Omari was placed by her guardians. If its interests are not considered, the hostel may have the power to terminate her residence. Indeed, as a private institution, it may well have power on its own behalf to restrict visitors and to limit visiting hours, regardless of the wishes of the guardians, members of the family or the Tribunal. The Tribunal has no power over the hostel nor to give it directions.
106. The hostel would clearly have to have regard to the best interests of Mrs Omari. Whether or not the Tribunal was formally bound by the principles set out in s 4 of the Guardianship Act (see pars [121]-[129] below), it would obviously need to consider such matters as the best interests of the protected person. Such was, at common law, always the paramount consideration for the intervention of the court in the lives of such people: Attorney-General v Marquis of Ailesbury and Ors (1887) 12 App Cas 672 at 688; Strangwayes v Read [1898] 2 Ch 419 at 425-6. In the parens patrine jurisdiction of the courts, this principle was long established: Northern Territory of Australia v GPAO and Ors (1999) 196 CLR 553 at 583-4.
107. Those interests must include her happiness and state of equilibrium. It is not the Tribunal's duty to ensure that or to guarantee it. The facts may be that other factors outweigh these objectives, but the Tribunal should consider them.
108. I do find that assisting in creating a modus vivendi between the feuding siblings is a relevant factor. Indeed, it may be highly relevant to the proper care of Mrs Omari, her well-being and the ability of the hostel to provide appropriate residential care. Similarly, it is appropriate that Mrs Omari as a mother have access to all her children and the family feud should be managed to accommodate this. Nevertheless, these matters are not the only interests to be considered. In my view, the reasons of the Tribunal for its decision seem to focus on maintaining a balance between the children of Mrs Omari, managing the "bad blood" and those issues and there is little evidence of a proper consideration of her best interests in those reasons.
109. Having said that, I do not seek to criticise the Tribunal for it may well have considered such matters at an earlier stage and given careful thought to just such matters when originally making directions as to access. I can only deal with the material before me and there is no evidence that such consideration was given earlier and was not on this occasion.
110. The determination of what is relevant is a question of law: Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at 180.
111. Accordingly, it was an error of law for the Tribunal to reject Mr Arnel's affidavit as that of a non-expert witness, though it was entirely for the Tribunal as to the weight to give it, having regard to the uncertainties inherent in it. I uphold this ground of challenge.
5. The Tribunal gave excessive weight to the convenience of the hostel.
112. It is true that the Tribunal relied, inter alia, on the need for efficient running of the hostel. I would not have said that the reasons betray an excessive weight to this factor.
113. In any event, a ground of appeal asserting that an administrative tribunal, especially one not bound by the rules of evidence, is against the evidence and the weight of the evidence does not raise a question of law. In Collins v Minister for Immigration and Ethnic Affairs [1981] FCA 147; (1981) 58 FLR 407, Fox, Deane and Morling JJ said, at 410:
... the concepts of a decision being against the evidence and of being against the weight of the evidence belong to appeals from courts of law and have particular application to jury verdicts. Even in that context, they do not involve questions of law. They certainly have no place when the appeal, or review, is of proceedings of an administrative tribunal which is not bound by the rules of evidence and which, subject to the obligation to observe the requirements of natural justice, can inform itself as it chooses ... An appellant who attacks a conclusion of the [Administrative Appeals Tribunal] because of deficiency of proof said to amount to error of law must show, if he is to succeed, that there was no material before the Tribunal upon which the conclusion could properly be based.
114. See also Australian Broadcasting Tribunal v Bond & Ors [1990] HCA 33; (1990) 170 CLR 321 at 355-6; Comcare Australia v Lees [1997] FCA 1415; (1997) 151 ALR 647 at 652-3; Townsend v Minister for Immigration and Multicultural Affairs [2001] FCA 492 at [4]- [7]; Hill v Repatriation Commission [2005] FCAFC 23; (2005) 218 ALR 251 at 268; Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 at 382.
115. Accordingly, the claimed error is not an error of law and this ground of challenge is dismissed.
6. The Tribunal failed to ascertain the wishes of Mrs Omari.
116. Section 4 of the Guardianship Act requires certain principles to be followed by what is described as the "decision-maker". Included in those principles are:
(a) the protected person's wishes, as far as they can be worked out, must be given effect to, unless making the decision in accordance with the wishes is likely to significantly adversely affect the protected person's interests;
(b) if giving effect to the protected person's wishes is likely to significantly adversely affect the person's interests - the decision-maker must give effect to the protected person's wishes as far as possible without significantly adversely affecting the protected person's interests;
(c) if the protected person's wishes cannot be given effect to at all - the interests of the protected person must be promoted;
(d) the protected person's life (including the person's lifestyle) must be interfered with to the smallest extent necessary.
117. If these principles are to be followed, then, clearly the protected person should be consulted so that his or her wishes can be worked out, so far as possible.
118. There is material before me that the Tribunal was well aware of the need to advert to the best interests of Mrs Omari. The President said in the course of the hearing,
Now, it's on that issue of access that we're really here about. I don't really want to hear anything else except that, because that's really what the application is about and anything further than that goes beyond that. And it's no good, in this particular Tribunal hearing, one side of the family saying one thing and the other side criticising them. It's purely about that, and I can tell you we will be focussing here on what's in the best interests of Mariem Omari and what's in the best interests of her to be securely placed where she is and for the care to continue.
119. Nevertheless, there was no material before the Tribunal about Mrs Omari's wishes or whether anyone had attempted to ascertain them. I also note, interestingly given this ground of appeal, that Mr Arthur, who appeared for the appellant before the Tribunal, did not ask at the hearing for Mrs Omari's wishes to be ascertained or submit that the Tribunal had to do this and, although the children of Mrs Omari who were present at the hearing appeared to have plenty of opportunity to comment, none of them suggested that they had asked their mother what she wanted.
120. There was nothing in the Tribunal's reasons to suggest that Mrs Omari's wishes had been sought either in respect of the instant application or at any other time.
121. The issue of the status of such principles is not unimportant. It has become more common for statutes to set out principles in accordance with which the functions exercisable under the statute are to be exercised. See, for example, Pt 1.2 of the Children and Young People Act 2008 (ACT); s 7 of the ACT Civil and Administrative Tribunal Act 2008 (ACT).
122. Such principles are a statutory direction to have regard to what clearly are required relevant considerations. In this sense, it is a consideration that a tribunal is bound to take into account in the sense used by Mason J in Minister for Aboriginal Affairs & Anor v Peko-Wallsend Limited and Ors [1986] HCA 40; (1986) 162 CLR 24 as follows at 39:
(a) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision: Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363, at p 375; CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 at pp 183, 196-197; Ashby v Minister of Immigration [1981] 1 NZLR 222, at pp 225, 230, 232-233; The statement of Lord Greene M R in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1949] 1 KB 223, at p 228, that a decision-maker must take into account those matters which he "ought to have regard to" should not be understood in any different sense in view of his Lordship's statement on the following page that a person entrusted with a discretion "must call his own attention to the matters which he is bound to consider".
(b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion.
123. Accordingly, a failure to apply the principles or take them into account is an error of law: Australian Hotels Association v Copyright Tribunal [2008] FCAFC 37; (2008) 100 ALD 490 at [24].
124. Of course, not every error of law will entitle an appellant to successfully challenge a decision of a tribunal. The test may be a little more easily achieved in the case of a tribunal than in the case of an inferior court: Wilson v County Court (Vic) [2006] VSC 322; (2006) 14 VR 461 at 470. Nevertheless, in the context of statutory judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth), Mason CJ said in Australian Broadcasting Tribunal v Bond & Ors [1990] HCA 33; (1990) 170 CLR 321 at 353:
A decision does not 'involve' an error of law unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different.
Toohey and Gaudron JJ said in the same case at 384:
For an error of law to be involved in a decision something more than the mere occurrence of error is necessary. The error must have contributed to the decision in some way or, at the very least, it must be impossible to say that it did not so contribute. Conversely, an error is not involved in a decision if it did not contribute to the decision or if the decision must have been the same regardless of the error. Thus, to show that an error of law is involved in a decision it is necessary, at the very least, to show that the decision may have been different if the error had not occurred.
125. Accordingly, for example, were the Tribunal to be satisfied from prior involvement with Mrs Omari that her wishes could not reasonably be ascertained and that this situation was unlikely to change, it would be no appellable error of law for the Tribunal not to disturb her each time an application is made just for the sake of form. That this was the Tribunal's position would, however, need to be made clear.
126. There is, however, a real question about the applicability of the principles in s 4 of the Guardianship Act to the Tribunal. Section 4(1) of the Act states:
This section applies to the exercise by a person (the decision-maker) of a function under this Act in relation to a person with impaired decision-making ability (the protected person).
127. Although the term "decision-maker" would, as an ordinary English term, apply to the Tribunal, it is a defined term. The definition is what the Legislation Act 2001 (ACT) refers to as a "tagged-term definition". See s 130 of the Legislation Act 2001 (ACT), especially example 7 and Note 2 to that section. It is called a "labelling definition" in FAR Bennion Statutory Interpretation (Butterworths, 1984) at pp 280-1.
128. Thus, it seems to me that the term "decision-maker" is simply a label for what is defined. The ordinary meaning of the "label" cannot be used to enlarge or narrow or otherwise give meaning to the term it "tags" or "labels". This is re-inforced by what was said in Gibb v The Commissioner of Taxation of the Commonwealth of Australia [1966] HCA 74; (1966) 118 CLR 628 by Barwick CJ, McTiernan and Taylor JJ at 635:
In our view, and with respect to those who think otherwise, this line of reasoning is fallacious. The function of a definition clause in a statute is merely to indicate that when particular words or expressions the subject of definition, are found in the substantive part of the statute under consideration, they are to be understood in the defined sense - or are to be taken to include certain things which, but for the definition, they would not include. Such clauses are, therefore, no more than an aid to the construction of the statute and do not operate in any other way. As was said by Sutherland (Statutes and Statutory Construction, 2nd ed, vol 2, p 687),
Such definitions can, in the nature of things, have no effect except in the construction of the statutes themselves.
Consequently the effect of the Act and its operation in relation to dividends as defined by the Act must, we think, be found in the substantive provisions of the Act which deal with 'dividends'.
129. Leaving aside, then, the words "decision-maker", the question is whether the Tribunal is bound by s 4 of the Guardianship Act. The section obliges each "person" to comply where the "person" exercises a function under the Act. "Person" is not a word that would ordinarily apply to a Tribunal, though the extension of the singular to include the plural (s 145 of the Legislation Act 2001 (ACT)) might make that more feasible.
130. It is clear that "person" does not ordinarily include a court: Cowan v Stanhill Estates Pty Ltd [1966] VicRp 82; [1966] VR 604; Parkes Management Ltd v Perpetual Trustee Co Ltd & Anor [1979] 1 NSWLR 274; Hilton v Wells & Ors [1985] HCA 16; (1985) 59 ALJR 396 at 403, 408; Duff v McCulloch and Ors (1985) 11 FCR 237. See also the helpful discussion in Kizon v Palmer & Ors (1997) 72 FCR 409 at 430-1. These cases were decided in the context of information being communicated and a prohibition on communication of that information to "any person"; in each case, the courts held that it did not breach the prohibition to communicate such information to the court.
131. The Dictionary of the Legislation Act 2001 (ACT) defines "person" in Part 1, Dictionary (Meaning of commonly used terms) to include an "individual and a corporation". Section 160(1) also refers to that meaning but without any embellishment of assistance. The examples given to the section do not advance the argument.
132. It is, of course, possible to fall back on the well-known approach that if the legislature (or the drafter) had intended to include the Tribunal, it could easily have said so by, for example, providing for "a person and the Tribunal" or "a person, including the Tribunal", in the section but did not do so. It could also have used a wider term, which would clearly cover the tribunal, such as "entity". See, for example, Pt 15 of the ACT Civil and Administrative Tribunal (Transitional Provisions) Regulation 2009 (ACT) and the Dictionary to the Legislation Act 2001 (ACT).
133. Having said that, it would be at least surprising were the Tribunal not bound to observe the principles in the Act. It is difficult to conceive of a good reason for so excluding them, especially where the common law would probably have required the observance of at least some.
134. I am inclined to think that the Tribunal is not formally bound under the Act to comply with the principles, but that it would clearly be highly desirable for it to do so. It seems unlikely that a Tribunal would deliberately refuse to apply them. It may have a common law duty to comply with what is encompassed in some of them.
135. As it is not necessary for the purposes of this appeal to make a positive finding on this issue and as it was not addressed before me, I make no formal finding on this ground. The legislature might consider whether there is a need for some clarification by amendment or otherwise. Accordingly, I make no finding on this ground of the appeal.
7. The Tribunal gave no weight to the pattern of visits to Mrs Omari by the parties.
136. Mr Arthur handed up to the Tribunal "an extract taken from the visitors book maintained at [the hostel] covering the period from 11 July 2007 until 14 January 2008". The need to record the visiting hours had been referred to by the Tribunal before: see pars [28] and [29].
137. The President responded to the tender as follows:
THE PRESIDENT: The book's maintained because there was so much disputation we had to go to the ridiculous step of retaining it. That's why this book's retained, at our request. It wouldn't normally be considered as appropriate for an agency or a facility such as this to have to do that and I think - that's the reason, we asked it to be done.
138. Mr Arthur then explained how he proposed to use the tendered material as follows:
MR ARTHUR: Well, can I take you to some of the entries in that book? Now, what I want to demonstrate to the Tribunal is a pattern on behalf of both Sabah and a pattern on behalf of Mr Mohammed Omari....
[Mr Arthur then detailed a number of specific entries].
MR ARTHUR: What this book shows is two things, these entries. It shows a consistent pattern on the part of Sabah visiting three times a week between 9 and 12. In other words, she's been complying with the Tribunal orders.
...
MR ARTHUR: But if I take you through every entry concerning Mr Mohammed ...
THE PRESIDENT: What does it matter? Mr Mohammed did not have any restrictions.
MR ARTHUR: Right.
THE PRESIDENT: And he is the guardian, or one of the guardians.
MR ARTHUR: But the pattern that emerges from this book is that he visits at night. Overwhelmingly.
139. There was further argument and the following exchange is recorded:
THE PRESIDENT: So we've realised the value of the mother having access to all the daughters with the minimum of fuss and within the exigencies and the operation of the home.
MR ARTHUR: Could I cut to the basics, members of the Tribunal?
THE PRESIDENT: It isn't a case of your bit, my bit. It's a case of what is said to be effective as far as those two incidents occurred.
MR ARTHUR: It is clearly in the best interests of the protected person that she see all the members of her family.
THE PRESIDENT: Not all at once and not every day.
MR ARTHUR: True. It is not in her interests that Sabah and Mohammed visit at the same time. Now, given that Mohammed, from his pattern, seems to visit at night why should not Sabah's visiting times be during the day, any day? There is no evidence...
THE PRESIDENT: Seven days a week? What about other members of the family that might want some private time?
140. Finally, after further argument, the President said:
THE PRESIDENT: I disagree. Anyway, look, okay. I understand what you're saying, but you're saying we should just abandon it and let her attend as often as she likes.
MR ARTHUR: No, we're saying attend during the day.
THE PRESIDENT: And every day if she wants...
141. This makes it clear that the argument, based on the tendered material, was understood but rejected. This does not mean that the material was not considered or that it was improperly given no weight.
142. It is only if the material is relevant in the sense that it was beyond doubt material to the decision, that failure to consider it is an error of law: Sullivan v Department of Transport (1978) 20 ALR 323 at 350.
143. Taking it into account means having regard to it for what it is worth, it does not mean that the Tribunal cannot evaluate it and give it the value it considers appropriate. The inferences to be drawn from the tendered material were by no means determinative of the outcome of the proceedings.
144. As noted above at [79]-[80], the fact that a matter is not mentioned in reasons does not mean that it has not been taken into account. The portions of the transcript set out above show that the matter was considered and given the weight that the Tribunal considered appropriate.
145. In my view, the Tribunal, in rejecting the inference the appellant wished to have drawn from the tendered material, did not fail to take account of a relevant consideration and this ground is not made out.
8. The Tribunal erred in refusing the appellant increased visiting hours.
146. This ground really summed up the effect of the other grounds, but was stated as a separate ground of challenge.
147. It is not clear how it is said that the refusal was an error of law. The decision of the Tribunal was a discretionary one and the well-known principles on which an appellate body interferes with a discretionary decision apply: see House v The King [1936] HCA 40; (1936) 55 CLR 499.
148. The submissions of the appellant seemed to proceed on the basis that there was an onus on the first and second respondents to show that the directions sought by the appellant were not in the best interests of Mrs Omari. That is not correct. The Tribunal has an unfettered discretion, which of course has to be exercised judicially, and the proceedings should not be regarded as adversarial with any onus of proof.
149. The issue truly before the Tribunal (whether it completely appreciated it or not) was whether the power given to the guardians to regulate access to Mrs Omari should be circumscribed by a direction of the Tribunal.
150. That involved at least an assessment of whether Mrs Omari wished such visits, if her wishes could be ascertained, the wishes of the guardians and whether they were unreasonable (not whether they were reasonable), the convenience and rules of the hostel, the wishes of the appellant, the interests of other members of Mrs Omari's family and whether the current arrangements, made in the context of continuing disputation amongst the siblings, were working satisfactorily and whether there was a basis for changing them.
151. Whilst for reasons I have set out elsewhere in these reasons, the Tribunal did not comply with the law in making the directions it did, I am not satisfied that this was because it was an error of law not to have acceded to the appellant's wishes.
153. For the reasons set out above, I propose to set aside the direction of the Tribunal made on 2 April 2008 that the directions of 18 December 2006 be unchanged. Direction 5 of those latter directions was ultra vires and should not have been thereby continued.
154. Since the proceedings were commenced, the legislation establishing the Tribunal has been repealed and the Civil and Administrative Tribunal now has the jurisdiction under the Guardianship Act formerly exercised by the Tribunal. The transitional provisions are set out, interestingly, in the ACT Civil and Administrative Tribunal (Transitional Provisions) Regulation 2009 (ACT).
24 Application to guardianship tribunal - no inquiry
(1) This section applies if, before the commencement day -
(a) an application was made to the guardianship tribunal under a territory law; and
(b) the tribunal had not begun an inquiry into the application.
(2) The application is taken on and after the commencement day to be an application to the ACAT under the territory law.
(3) An order made by the guardianship tribunal in relation to the application is taken on and after the commencement day to be an order of the ACAT.
(1) This section applies if, before the commencement day -
(a) an application was made to the guardianship tribunal under a territory law; and
(b) the tribunal had begun an inquiry into but not decided the application.
(2) The old law continues to apply in relation to deciding the application.
Guardianship tribunal was defined in the Dictionary to the Legislation Act 2001 (ACT) to mean the Guardianship and Management of Property Tribunal, until 11 September 2008 when it was amended by the ACT Civil and Administrative Tribunal Legislation Amendment Act 2008 (ACT).
156. The Dictionary of the Regulation defines "old law" as follows:
old law, in relation to a matter before the commencement day, means the law in force in relation to the matter immediately before the commencement day.
157. Thus, although the provisions of the Guardianship Act providing for the Tribunal have been repealed, it would appear that s 25, if relevant, would preserve the Tribunal until the inquiry is completed.
158. Here, however, the Tribunal has begun an inquiry, so s 24 does not appear to apply. On the other hand, the Tribunal has decided the application so, at that level, s 25 does not appear to apply either. If, as I propose to do, I set aside the decision of the Tribunal, it may be accepted that the Tribunal should be taken not to have decided the application.
159. Accordingly, it seems to me that I am obliged to remit the application to the Tribunal for reconsideration and decision in accordance with these reasons.
160. The ACT Civil and Administrative Tribunal, however, will have to give any future directions and review the Guardianship Order at the end of the three year period. The parties may consider that, in the circumstances, they may wish simply to make a fresh application to the ACT Civil and Administrative Tribunal. That is not a matter on which I express an opinion.
161. There does not seem to be any power in the Guardianship Act for the Tribunal to make an order as to costs. It cannot, therefore, make such an order. That does not bind this Court as to the costs of the appeal.
162. Nevertheless, although I have set aside the directions of the Tribunal, it is not because the appellant's case was improperly considered, save in two small instances, but rather that the Tribunal misconceived its function.
163. Had there been a suitors fund or similar available in the Territory, I may have ordered costs recoverable from such a fund. I do not, however, consider it appropriate to order the unrepresented guardians to bear the appellant's costs in these circumstances. It may be that the appellant can nevertheless seek an act of grace payment from the Territory.
I certify that the preceding one hundred and sixty-three (163) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Counsel for the 1st and 2nd Respondents: Self Represented
Solicitor for the 1st and 2nd Respondents: Self Represented
Omari
Omari, Omari and Guardianship and Management of Property Tribunal [2009] ACTSC 28
(1980) 144 CLR 13
(1995) 14 WAR 259
(1979) 52 ALJR 350
(1989) 16 NSWLR 525
(1991) 21 NSWLR 725
(1997) 48 NSWLR 430
(1933) 50 CLR 228
(1985) 156 CLR 342
(2000) 203 CLR 172
(1999) 196 CLR 553
(1995) 184 CLR 163
(1981) 58 FLR 407
(1990) 170 CLR 321
(1997) 151 ALR 647
(2005) 218 ALR 251
(2007) 33 WAR 361
(1986) 162 CLR 24
(2006) 14 VR 461
(1966) 118 CLR 628
(1985) 59 ALJR 396
(1985) 11 FCR 237
(1997) 72 FCR 409
(1978) 20 ALR 323
(1936) 55 CLR 499
(1981) 38 ALR 363