QJ v Public Guardian & Ors

REASONS FOR DECISION Introduction 1 QM is a woman in her late eighties who has been diagnosed with dementia and paranoid schizophrenia. In January 2005, her estate was worth about $1,860,000. In 1999 QM appointed her then 30 year old grandson, as her attorney under a Power of Attorney. Later she appointed a friend as attorney jointly with her grandson. At about the same time she appointed her grandson and her friend as her enduring guardians. QM's condition gradually deteriorated to the point where she began living in a hostel full time from June 2003. QM's daughter, the grandson's mother, was concerned that she had been excluded from participating in decisions involving her mother and applied to the Guardianship Tribunal for a guardianship order, a financial management order and for a review of the enduring powers of attorney. On 16 March 2005, the Guardianship Tribunal dismissed the applications for guardianship and financial management orders and decided not to conduct a review of the enduring powers of attorney. QM's daughter has appealed to the Appeal Panel against those decisions. Jurisdiction 2 The Appeal Panel's jurisdiction to hear external appeals comes from s 67A of the Guardianship Act 1987 (the Act) and s 118A of the Administrative Decisions Tribunal Act 1997 (ADT Act). An external appeal may be made as of right on any question of law or by leave on any other ground. (Sections 118B(1) of the ADT Act.) QJ appealed on questions of law and sought leave to appeal against the merits of the Guardianship Tribunal's decisions. Parties and representation 3 The parties to proceedings before an Appeal Panel include the appellant and anyone else who was a party to the proceedings before the Tribunal. (Section 67(2A)(d) of the ADT Act and rule 41A(1) of Schedule 1 to the Administrative Decisions Tribunal Rules (Transitional) Regulation 1998 - "the Regulation".) Because the friend and the grandson were parties to the application for a financial management order and the application to review the making of the powers of attorney, they were parties to the appeal against the Tribunal's decisions on those matters. However, as they were not parties to the application for guardianship, they were not parties to the appeal against the dismissal of that application. In interlocutory proceedings, the Appeal Panel joined the friend and the grandson as parties to the appeal against the dismissal of the guardianship application. 4 QM's daughter represented herself at the hearing. Mr Hozack represented the friend and the grandson. QM did not attend the hearing and was not separately represented. The Protective Commissioner and the Public Guardian are also parties to the appeal, but neither chose to play any role in the proceedings. The Guardianship Tribunal elected to be a party. Ms Cho indicated that, as the Tribunal's representative, she would be available at the hearing of the appeal to provide comment on the Tribunal's practices and procedures. Guardianship Tribunal's decision. 5 Application for guardianship. The Guardianship Tribunal's decision was that while QM was "a person in need of a guardian", several factors mitigated against a guardianship order being made. QM had already appointed her friend and her grandson as enduring guardians, and there was no evidence that they were not making decisions in her best interests. The Tribunal took the view that the current arrangements were working well and there was no justification for the appointment of a guardian under the Guardianship Act 1987. 6 Application for financial management. In relation to the application for financial management, the Tribunal was satisfied that QM was not capable of managing her finances and that the existing attorneys were managing QM's finances in her best interests. The Tribunal made a specific finding that it was not in QM's best interests to make a financial management order appointing her daughter as financial manager. 7 Application for review of power of attorney. The Guardianship Tribunal supported its decision not to conduct a review of the Enduring Powers of Attorney on the basis that there was no evidence indicating that such a review should be conducted. Without reliable evidence of incapacity, exploitation or mismanagement, the Tribunal was not prepared to open up the appointments to review. Grounds of Appeal 8 QM's daughter was concerned that she had been excluded from participating in decision making involving her mother's care. She was also unhappy with the way in which Mr Hozack had handled her mother's affairs. After reading the daughter's written submissions and listening to her oral presentation, the arguable grounds of appeal come down to the presentation of new evidence about the timing of a gift QM made to her grandson, a breach of procedural fairness in relation to the non-disclosure of the amount of the gift and the absence of direct evidence from QM about her views. New evidence as to when the gift was made 9 Circumstances of the gift. As we did not have access to a transcript, we rely on the evidence about the timing of a gift of money from QM to her grandson as set out in the Tribunal's reasons: The Tribunal asked [the grandson] a question as to whether he had ever received a gift from [his grandmother]. [The grandson] indicated that his grandmother had wanted to give him a gift, this had occurred well over two years ago, before his grandmother deteriorated and entered the hostel which occurred in May or June 2003. He was concerned about whether it was appropriate that he receive a gift and carefully consulted [the friend], attorney, and Mr Hozack, solicitor, on this question. They indicated that he should take the gift as they were satisfied with [QM] making the decision as they were satisfied that it was clearly [QM's] wish to make the gift. A cheque was given to [the son]. There have been no gifts since this time, and [the grandson] has continued to manage [QM's] estate carefully. 10 New evidence. The new evidence provided by the grandson to the Appeal Panel was a copy of the cheque that QM gave him. The cheque was dated 8 August 2003. The date on the cheque is not consistent with the Guardianship Tribunal's record of the grandson's evidence. The Guardianship Tribunal was apparently told that the gift had been given well over two years previously, that is well before March 2003. The medical evidence that was before the Tribunal suggests that QM had suffered from dementia and chronic paranoid schizophrenia since at least early 2002. During 2003, QM's medical condition had deteriorated to the extent that she required full time care in a hostel from June. A report from her general practitioner, Dr Brett Thomson, dated 5 April 2004 said that "Her memory and cognitive ability are not commensurate with being able to deal with complex matters or remember accurately things that have occurred in the past." 11 Appeal Panel's conclusion. The fact that new evidence is made available after a decision has been made, does not mean that the Guardianship Tribunal has made an error of law in coming to its decision: WAKI v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1093. However the Appeal Panel may, by leave, extend an appeal to grounds other than an error of law. One basis on which leave could be granted is the fact that new evidence has come to light since the Tribunal's decision. Whether or not leave should be granted in such circumstances depends, among other things, on the nature and significance of the evidence and the reason for its non-disclosure at the time of the hearing. 12 Although we had no direct evidence on the point, we assume that the grandson did not have the cheque with him when he attended the Guardianship Tribunal hearing and his evidence was based on his recollection. The new evidence is significant because it diverges markedly from the evidence given to the Guardianship Tribunal. The gift was not given "well over two years ago" before QM had "deteriorated and entered the hostel" but after QM had been in the hostel full time for over a month. QM's state of mind at the time the gift was made is highly relevant to each of the Guardianship Tribunal's decisions. In those circumstances, we grant leave for the appeal to be made on the ground that new evidence has been made available. Rather than hear the merits of the case ourselves, the appropriate course is to set aside the Guardianship Tribunal's decisions and remit the matters to it to be heard and decided again taking into account the new evidence and any other evidence that is relevant. Amount of the gift 13 At the grandson's request, the Tribunal chose not to disclose the amount of the gift to his mother [QM's daughter]. The Tribunal explained the background to this decision in its reasons: [The grandson], through Mr Hozack, indicated that he was unwilling to disclose the amount of the gift to [QM]. The Tribunal accepted written advice from [the grandson] as to the amount of the gift which was retained on the Tribunal file. The Tribunal indicated to [the daughter] that if it was considered that the evidence was significant to the issues to be determined then the Tribunal would disclose the amount, but was prepared to accept the evidence in confidence initially. All other evidence relating to the gift was given orally by parties and witnesses during the hearing, only the particular of the monetary amount of the gift was given in writing in confidence to the Tribunal. 14 According to QM's daughter, this was an error of law either because it constituted a breach of procedural fairness or because there was no justification for keeping the information secret. The Guardianship Tribunal's reasons for not disclosing the amount of the gift were as follows: The Tribunal is required to consider the general principles of the Act as set out in section 4 of the Act in exercising its functions under the Act. The paramount consideration for the Tribunal is [QM's] welfare and interests, and for reasons detailed above, the Tribunal considered that it would be detrimental to [QM's] welfare to give financial particulars of the gift to [the daughter], which would in all probability on the evidence in the case lead to distressing discussions between [the daughter] and [QM]. All evidence about the gift, except for the monetary amount of the gift, was given in open hearing. The Tribunal has a duty to provide procedural fairness to parties in Tribunal proceedings and a party should be given an opportunity to be heard on evidence which may influence the Tribunal's decision, where the evidence is credible, relevant or significant to the decision to be made. In particular where the evidence is adverse to the party's case and is significant to the decision to be made, the party should be given an opportunity to be heard on that evidence. In this case the issue of the gift was not evidence adverse to [QM's] case. [QM] was aware of the occurrence of the gift and the facts surrounding the acceptance of the gift and made no submissions to the Tribunal on these issues. She expressed interest in knowing the amount of the gift when the fact of it became known but took no further issue with the fact of the gift. Evidence as to the amount of the gift was evidence of a personal financial nature. The issue of the gift was not significant for the Tribunal in its determinations. What was significant for the Tribunal in its determinations was the evidence of [QM] and the evidence overall in the case which indicated that the current arrangements were operating in [QM's] best interests in accordance with [QM's] wishes. 15 In KA v Public Guardian & Ors [2004] NSWADTAP 25, the Appeal Panel gave the following summary of the relevant principles of the "hearing rule" of procedural fairness. In the light of these principles, the following questions arise: Whether the daughter had a relevant interest, right or legitimate expectation that stood to be affected by the Tribunal's decision? Whether the information in the documents was "credible, relevant and significant" material adverse to the daughter? Whether the substance of the material was put to the daughter in circumstances where she had an opportunity to respond? Whether there were any exceptional circumstances? Interest, rights or legitimate expectation 16 Mr Hozack, submitted that the daughter had no interest that stood to be affected by the Tribunal's decision. The word "interests" in this context has been interpreted broadly. In Kioa v West (1985) 159 CLR 550 Mason J said at 582 that interests may relate to "personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests." A person's interests must be affected directly and not merely in the same way in which the interests of an ordinary member of the public are affected. (Kioa v West per Mason J at 584 and per Brennan J at 619-20.) The Tribunal assumed that although QM's interests and welfare were paramount, the daughter had an interest that could have been affected by their decision. In our view, the Tribunal's assumption was correct in that respect. QM's daughter has an interest in being involved in decisions relating to her mother. Credible, relevant and significant material adverse to the daughter? 17 Was the material adverse? The Tribunal found that the amount of the gift was not material that was "adverse" to the daughter. The term "adverse" was used by Brennan J in Kioa v West (1985) 159 CLR 550 at 629: Nevertheless, in the ordinary case where no problem of confidentiality arises, an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. 18 In Applicants S503 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1372 at [24] Tamblin J upheld the decision of a Federal Magistrate who concluded that there had been no breach of procedural fairness because the material in question was not adverse to the applicant's claim. (See also Minister for Immigration and Multicultural & Indigenous Affairs v Lorenzo [2005] FCAFC 13 at [55].) In this case, the amount of the gift was not information that was adverse to the daughter's case. If anything, it had the potential to support her applications. We agree with the Guardianship Tribunal that because the information was not adverse to the daughter, the non-disclosure of the amount of the gift is not a breach to the rules of procedural fairness. 19 Error of law in keeping the information secret? Even if there has been no breach of procedural fairness, has the Guardianship Tribunal nevertheless made an error of law by not disclosing the information to the daughter? Despite the fact that the Guardianship Tribunal's jurisdiction is essentially protective, there is no express power in the Act allowing the Tribunal to withhold any part of the evidence from one party in contested proceedings. Courts have inherent jurisdiction to admit evidence and yet withhold it from an affected party: Nicopoulos v Commissioner for Corrective Services 2004 NSWSC 502 at [88]. In that case Smart J noted at [71] that "It is a particularly serious step for a Court to consider material not made available to one of the parties in the proceedings before it." Although it is not beyond doubt, we find that because the Tribunal is not bound by the rules of evidence, it has power to admit evidence but rule that that evidence not be disclosed to a particular party or parties. That power is necessary because of the protective nature of the jurisdiction. (J v Lieschke (1987) 69 ALR 647 Brennan J noted at 653.) Even so, as with courts, it is a serious matter for the Tribunal to accept secret evidence from one party. 20 Relevant factors. Having decided that it is open for the Tribunal to accept secret evidence from one party, in what circumstances is the acceptance of such evidence an error of law? While we were unable to identify any relevant authority on that point, the acceptance of secret evidence should be an exceptional rather than a routine event. Whether the circumstances justify keeping the information secret will be a matter to be determined on a case by case basis. In the present case the amount of the gift was directly relevant to the issues in dispute between the parties. The Tribunal foreshadowed to the daughter that if it considered that the evidence was significant to the issues to be determined then the Tribunal would disclose the amount to her. However, the Tribunal concluded that the amount of the gift had not been significant to its decision. Presumably that was because the Tribunal found that the existing attorneys were managing QM's finances in her best interests. Because the amount of the gift was a factual matter about which the daughter had no contrary evidence, the only matter about which she could have commented was the significance of the amount. As the Tribunal knew the amount of the gift, they were able to come to their own view about its significance. 21 Exceptional circumstances? The reasons the Tribunal gave for keeping the amount confidential was that it was evidence of a "personal financial nature" and that there is "considerable family disharmony which would potentially be exacerbated by [QM's] personal financial details, such as evidence of the monetary amount of the gift to [the grandson], being provided to [the daughter]." Given that there was no factual dispute about the amount of the gift and that disclosure may have led to increased conflict between QM and her daughter, we accept that there were exceptional circumstances warranting the non-disclosure of the amount in this case. If the information had been adverse to the daughter and non-disclosure had denied her the opportunity to adduce evidence contrary to the secret evidence, then the outcome may have been different. QM's views 22 The final ground of appeal was that the Tribunal did not take into account QM's views in reaching its decision. Mr Hozack told the Tribunal that QM was ill and was unable to attend the hearing. It is apparent from the report from the Tribunal's investigation officer that her views were not obtained prior to the hearing. Under s 4(d) of the Guardianship Act 1987, when exercising any function under the Act, the Tribunal must observe the principle that "the views of such persons in relation to the exercise of those functions should be taken into consideration." It is implicit in the Tribunal's reasons for decision that the Guardianship Tribunal did not regard QM as able to present any reliable evidence of her views. Although it would have been preferable for the Tribunal to make some reference to QM's views during the course of its reasons, for the reasons set out in LA v Protective Commissioner & Ors [2004] NSWADTAP 39, we do not consider that the Tribunal's failure to do so constitutes an error of law. Conclusion 23 We have decided to set aside each of the Guardianship Tribunal's decisions and remit those matters back to the Tribunal to decide again. The reason for that decision is the availability of new evidence which is significantly different from the evidence the Tribunal relied on in coming to its decision. Orders 1. The Guardianship Tribunal's decision to dismiss the application for a guardianship order is set aside. 2. The Guardianship Tribunal's decision to dismiss the application for a financial management order is set aside. 3. The Guardianship Tribunal's decision not to conduct a review of the powers of attorney is set aside. 4. These matters are remitted to the Guardianship Tribunal to be heard and decided again taking into account the new evidence and any other evidence that is relevant.

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