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[2016] SACAT 19
SA Civil and Administrative Tribunal
2016-01-22
Parker J
Original judgment source is linked above.
Re AKS [2016] SACAT 19
The South Australian Civil and Administrative Tribunal (Member Day) 2015/SC9134796
1. Subject to order 2 below, permission is granted under s 64(c) of the Guardianship and Administration Act 1993 to apply for internal review;
2. The Tribunal declines to permit internal review of order 2(iii) made on 5 June 2015 requiring the Public Advocate to make inquiries and report to the Tribunal;
3. The Tribunal varies the previous orders made by the Tribunal on 4 June 2015 as follows:
(a) UAM is appointed as full guardian of the AKS until further order of the Tribunal.
(b) JRY and UAM are appointed as joint and full administrators until further order of the Tribunal. I note that JRY made no application to seek remuneration for his work as administrator under this Order.
(c) Order 4 of the orders dealing with administration made by the Tribunal on 4 June 2015, which directed the Public Trustee to investigate its records and provide documents to the Tribunal, is suspended until further order of the Tribunal.
4. The decision as varied is to be regarded as having effect from Wednesday 2 September 2015.
5. The matter is to be set down before Justice Parker for a directions hearing in relation to the completion of the review under s 57 of the Guardianship and Administration Act 1993.
Internal review - Nature of SACAT internal review - Obligation to make correct or preferable decision requires review on the merits - No requirement to identify process or outcome error - Obligation to give appropriate weight to decision under review - Distinguished from appeal de novo
Internal review - Whether adjournment an internally reviewable "decision"
Internal review - Permission to seek review - Exercise of Tribunal's decision to grant permission - Interests of justice overriding principle - Review application must be reasonably arguable and subject matter of sufficient substance - Whether proceedings in original jurisdiction would be unduly fragmented - Whether application premature
Powers of Tribunal members - Whether Tribunal member authorised to make orders
Guardianship and administration - Investigations and reports by Public Advocate and Public Trustee - Power of Tribunal to order investigations
Guardianship and administration - Mandatory reviews under s 57 of Guardianship and Administration Act - Power to vary orders
Guardianship and administration - Entitlement of administrators to remuneration - SACAT has no power to set aside decisions to approve or allow expenditure made by the former Guardianship Board - Decisions of Public Trustee and Guardianship Board as to expenditure subject to functus officio principle
South Australian Civil and Administrative Tribunal Act 2013 s 70
South Australian Civil and Administrative Tribunal Regulations 2015 reg 4
Guardianship and Administration Act 1993 ss 7, 28, 44, 46, 57, 61, 64(c)
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Australian Broadcasting Tribunal v Bond (1990) 171 CLR 321
Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Council of the City of Greater Wollongong v Cowan [1955] HCA 16; (1955) 93 CLR 435
Curnow v Police [2008] SASC 84; (2008) 100 SASR 290
Director-General of Social Services v Chaney [1980] FCA 87; (1980) 47 FLR 80
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Glenauchen Pty Ltd v Circuit Finance Pty Ltd [2001] SASC 61
House v The King [1936] HCA 40; (1936) 55 CLR 499
McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423
Mick Lucas Pty Ltd v Licensing Commissioner (1987) 45 SASR 312
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597
R v Horstmann (2010) 269 LSJS 42; [2010] SASC 103
R v Lutze (2014) 121 SASR 144
This is an edited version of the Tribunal's statement of reasons issued pursuant to section 81 of the Guardianship and Administration Act 1993. The protected person has been de-identified and allocated a randomly selected pseudonym for privacy reasons. Other details that may lead to the identification of the protected person may have also been anonymised or omitted. These changes do not affect the Tribunal's decision or its reasons for decision.
1. This is an application for internal review under s 70 of the South Australian Civil and Administrative Tribunal Act 2013 (the SACAT Act) lodged by JRY, the joint administrator and former guardian of AKS. JRY is seeking that SACAT set aside certain of the orders made on 5 June 2015. Those orders were made in the course of a periodic review under s 57 of the Guardianship and Administration Act 1993 (the G&A Act). That review concerned the continuation of JRY's appointment as the guardian and administrator of AKS.
2. Mr Anthony Crocker of counsel appeared for JRY on the instructions of Mr Nicholas Iles of Iles Selley Lawyers. Mr Michael Wait of the Crown Solicitor's Office appeared with Mr Jonathan Lambert upon the instructions of the Attorney-General and also the Public Advocate. The Attorney-General was exercising his right of intervention under s 55 of the SACAT Act to make submissions in respect of jurisdictional issues. The Public Advocate wished to be heard generally on the matters in contention.
3. The parties accepted that due to his mental incapacity AKS is unable to give instructions in relation to the issues to be dealt with on the internal review. Thus, it was not possible for him to participate in the hearing. That is clearly consistent with the evidence and I have proceeded on the basis that it is not possible or reasonably practicable to ascertain his present wishes in terms of s 5(b) of the G&A Act.
4. It was also submitted by Mr Wait that while it would be possible to appoint the Public Advocate as the litigation guardian for AKS under rule 69(b) of the South Australian Civil and Administrative Tribunal Rules 2014, that was not necessary. His interests would be sufficiently protected by the contribution of the Public Advocate to these proceedings. There was no contrary submission from Mr Crocker. I consider that the submissions made by Mr Wait are correct. I find that it is not necessary to appoint a litigation guardian.
5. For the purposes of this internal review I have received into evidence and relied upon the following material:
6. With the exception of the two statutory declarations dated 7 August 2015, the material to which I referred was before the member when she made the orders on 5 June 2015. The latter two statutory declarations were made subsequently. I have exercised my discretion under s 70(4) of the SACAT Act to receive the two statutory declarations on the basis that they contain material directly relevant to the subject matter of this review and will assist me to arrive at the correct or preferable decision.
7. The following documents were received by the Tribunal after the hearing of the internal review application on 2 September 2015:
8. I have not relied upon this additional material in deciding the internal review application as it does not assist in determining the questions that arise. However, it will be relevant to the completion of the s 57 review.
9. Section 64(c) of the G&A Act provides that, subject to certain exceptions which are not relevant here, an application for an internal review may only be made with the permission of the Tribunal.
10. Mr Wait submitted that the Tribunal should not grant permission under s 64(c) of the G&A Act for the internal review to proceed. He relied upon regulations 4(a) and 4(e) of the South Australian Civil and Administrative Tribunal Regulations 2015 (the SACAT Regulations) to submit that this internal review could not determine the correctness of the decisions to adjourn the s 57 review and to order that the Public Advocate conduct an investigation.
11. Mr Wait submitted that when the Tribunal determines whether or not it should grant permission under s 64(c) of the G&A Act regard should be had to the principle that the work of the Tribunal in its original jurisdiction should not be unduly fragmented. He referred to the decision of Deane J in Director-General of Social Services v Chaney[1] and that of Mason CJ (with Brennan and Deane JJ agreeing) in Australian Broadcasting Tribunal v Bond.[2]
12. Mr Wait further submitted that permission should be refused on the basis that the application is premature. The orders made on 5 June 2015 were steps taken in the course of conducting the review under s 57. That review is still to be completed. The grant of permission for the internal review would interfere with the s 57 review. The s 57 review should be completed, and when that has occurred, if orders are made adverse to JRY then an internal review might be pursued at that time.
13. I indicated at the directions hearing on 7 July 2015 that I would decide whether or not permission should be granted at the same time as I decided the merits of the internal review application. An equivalent approach is not infrequently adopted by the Full Court of the Supreme Court and by the High Court. I adopted that approach because the issues were relatively complex and inextricably mixed. Thus, I could not properly decide the permission question without having first heard submissions on the substantive issues.
14. I consider that the Tribunal should take the same approach to the exercise of its discretion under s 64(c) to grant permission for an internal review as is taken by the Supreme Court when it decides whether or not to grant permission for a civil appeal. The overriding principle is always the interests of justice.[3] The ordinary approach is that permission will only be granted where an appeal is reasonably arguable and the subject matter is of sufficient substance to justify consideration.[4] A failure of the first instance decision-maker to give adequate reasons will require permission to be given.[5]
15. I consider that this internal review has raised significant questions of law that are reasonably arguable and require resolution. Those matters have not previously arisen in the short time that the Tribunal has been operating. I refer to the questions about:
In light of those significant legal issues I consider that it is plainly appropriate for me to grant permission under s 64(c).
16. In other circumstances the submission made by Mr Wait about the desirability of avoiding fragmentation of the review process may have been decisive. SACAT, no differently to a court, must generally seek to avoid fragmentation when the grant of permission for internal review is being considered. However, in the present case, the significance of the legal issues outweighs any concerns that I might otherwise hold about fragmentation of the review process.
17. Regulation 4(a) of the SACAT Regulations provides that the adjournment of proceedings by the Tribunal is not a "decision" within the meaning of s 3(1) of the SACAT Act. Similarly, regulation 4(e) excludes a direction given by the Tribunal under s 28 of the G&A Act requiring that the Public Advocate conduct an investigation. The effect of these two provisions is that neither the grant of an adjournment nor the making of a direction under s 28 is subject to internal review under s 70 of the SACAT Act. There is also no right to seek permission to appeal to the Supreme Court under s 71.
18. If Mr Wait is correct in his characterisation of the relevant orders, then regulation 4(a) and 4(e) will preclude internal review under s 70 of the SACAT Act. I note that the decision made by the member to adjourn the s 57 review has not been challenged in this internal review. Thus, I do not need to consider the exclusion from internal review made by regulation 4(a).
19. For the reasons given below at [71], I have concluded that the Public Advocate was directed to conduct an investigation under s 28 of the G&A Act. That task has been completed and the report received by the Tribunal (although it has not been admitted into evidence in this internal review). I consider Mr Wait's submission that regulation 4(e) precludes the Tribunal from reviewing the direction given to the Public Advocate to be correct. While I have no jurisdiction under s 70 of the SACAT Act to consider whether the relevant order amounted to an exercise of power under s 28 of the G&A Act, I will make some comments at [63] to [75] about the operation of s 28.
The nature of an internal review under s 70 of the SACAT Act
20. Section 70 of the SACAT Act provides as follows:
(1) Subject to this section, an application for a review of a decision of the Tribunal -
(a) in the exercise of its original jurisdiction; or
(b) as constituted by a registrar or other member of the staff of the Tribunal, may be made under this section.
(1a) An application for review under subsection (1)(b) is only by leave of a Presidential member of the Tribunal.
(2) An application for review must be instituted within 1 month of the making of the decision to which the application relates but the Tribunal may, if it is satisfied that it is just and reasonable in the circumstances to do so, dispense with the requirement that the application should be instituted within that period (even if the time for instituting the application has expired).
(3) The President may determine, in relation to a particular matter, or particular class of matters, how the Tribunal will be constituted for the purposes of this section.
(4) On a review, the Tribunal will examine the decision of the Tribunal at first instance on the evidence or material before the Tribunal at that time but the Tribunal may, as it thinks fit, allow further evidence or material to be presented to it.
(5) The Tribunal must, in acting under this section, reach the correct or preferable decision but in so doing must have regard to, and give appropriate weight to, the decision of the Tribunal at first instance.
(6) The Tribunal may, on a review under this section -
(ii) return the matter to the Tribunal as constituted at first instance for reconsideration in accordance with any directions or recommendations that the Tribunal acting on review considers appropriate.
(7) The Tribunal may, on a review, make any interim order pending any review, or any reconsideration and determination of the matter, under this section, or any ancillary or consequential order, that the Tribunal considers appropriate.
21. While in a general sense s 70 confers a right very similar to an appeal, the focus must be on the text of the provision. A quite detailed and prescriptive approach has been adopted in the drafting of s 70. However, some general assistance can be drawn from the decisions of the superior courts dealing with the nature of appeal rights.
22. The right to appeal against a judicial or administrative decision must be conferred by statute. That is because, at common law, there is no right to appeal. In Australia, statutory rights of appeal are commonly assigned to one of three broad classes.[7] Those classes are an appeal in the strict sense, an appeal de novo and an appeal by way of rehearing. While the rights that arise under those different categories of appeal have been subject to a great deal of judicial analysis, it is unnecessary for present purposes to explore those issues in any detail. Moreover, it is not uncommon for a statute to confer a hybrid right of appeal that mixes elements of two or more of the classes of appeal to which I have referred.
23. Section 70 requires the Tribunal to adopt the following approach when conducting an internal review:
24. The requirement that when the Tribunal conducts an internal review under s 70 it must examine the initial decision in light of the evidence or material before the Tribunal at first instance makes it abundantly clear that the process to be followed is quite different to that adopted by a court considering an appeal de novo. The fact that the Tribunal may, in its discretion, receive additional evidence does not change that position. A further important difference from an appeal de novo is the obligation to give appropriate weight to the decision made at first instance.
25. The effect of s 70(4) is that all evidence received by the first instance decision maker is received in evidence on the internal review and must be taken into account when the internal review is conducted. In contrast to an appeal de novo, there is no need for that evidence to be adduced again. As with an appeal by way of rehearing, the Tribunal decides the matter on the material before the primary decision maker (subject to the discretion to admit further evidence and material).
26. When the Tribunal considers the exercise of its discretion to allow the presentation of further evidence it will be relevant whether that material was reasonably available if diligent enquiries had been pursued before the first instance hearing (that being a key element of the approach adopted by appellate courts when determining whether fresh evidence should be admitted on appeal).[8] However, in my view this consideration will generally have much less weight in the context of proceedings before the Tribunal than it would have before an appellate court.
27. I hold that view for several reasons. First, SACAT is a tribunal visited with administrative power and not a court exercising judicial power. Secondly, the rules of evidence do not apply (see s 39(1)(b) of the SACAT Act). Thirdly, the proceedings, particularly at first instance, are conducted on a relatively informal basis (see s 8(1)(f)). Fourthly, the great majority of parties are not legally represented before the Tribunal and, in my observation, often have little understanding of how best to go about advancing or proving their case. Finally, and most importantly, the Tribunal is required to arrive at the correct or preferable decision. That obligation must not be frustrated by overly strict insistence on compliance with the principles applied by appellate courts to the admission of fresh evidence.
28. For completeness, I note that the other considerations applied by appellate courts in deciding whether to admit further evidence on appeal are that the new evidence is credible and may have affected the outcome of the proceedings.[9] In my view, those two considerations are relevant when SACAT exercises its discretion to admit further evidence at the internal review stage.
29. The use of the phrase "correct or preferable decision" in s 70(5) is clearly derived from the approach to administrative review in the Commonwealth jurisdiction adopted over many years by the Administrative Appeals Tribunal. While the phrase does not appear in the Administrative Appeals Tribunal Act 1975, the principle is based on Federal Court authority.[10]
30. The statutory direction in s 70(5) to arrive at the correct or preferable decision requires the Tribunal to consider afresh the issues that had been decided at first instance. In undertaking that task the Tribunal must have regard to, and give appropriate weight to, the decision made at first instance.
31. The imposition of the duty to arrive at the correct or preferable decision, and the reinforcement of that duty by the direction that appropriate weight should be given to the decision made at first instance, make it quite clear that s 70(5) requires the Tribunal to conduct a review on the merits. That is because, in contrast to a court dealing with an appeal by way of rehearing, the Tribunal may quash or vary a decision without having identified an error on the part of the first instance decision maker if it does not consider that the preferable decision was made.[11]
32. It also necessarily follows from the requirement under s 70(5) to arrive at the correct or preferable decision after giving appropriate weight to the decision at first instance that the principles set out by the High Court in House v The King[12] concerning appeals from the exercise of a judicial discretion do not apply when the Tribunal reviews a discretionary decision. Thus, if the Tribunal considers that the correct or preferable decision was not made it may set aside the exercise of a discretion without having identified either a process error or an outcome error in the decision under review.[13]
33. The use of the word "appropriate" to qualify the weight to be given to the decision at first instance is significant when the Tribunal is determining an internal review. The Tribunal must have regard to all relevant circumstances surrounding the making of the first instance decision. Those circumstances will include the qualifications and experience of the decision maker, the nature of the decision under review and whether the decision turned upon the assessment of oral evidence where the primary decision maker may have had a particular advantage when assessing the credit of a witness. Thus, for example, if a matter has been decided in a specialised jurisdiction where the member had particular expertise it may be appropriate, in some instances, to give considerable weight to their decision.
34. Mr Wait submitted that the review jurisdiction conferred by s 70 is effectively a hybrid between a traditional de novo appeal and an appeal by way of rehearing. He suggested that the approach to decision making under s 70 resembled an appeal de novo but that in matters of procedure the Tribunal would act as if it was conducting an appeal by way of rehearing. The analogy used by Mr Wait must be approached with careful regard to the terms of the statute. The principles that emerge from s 70 may be summarised as follows.
35. The obligation to arrive at the correct or preferable decision makes clear that what is required under s 70 is a review on the merits. In a general sense that resembles a court considering an appeal de novo. However, the requirement that appropriate weight must be given to the decision at first instance distinguishes an internal review from an appeal de novo. In an appeal de novo the decision at first instance would not be relevant because the court decides the matter afresh and its role is not limited to the identification of error. The procedure followed by the Tribunal is analogous to that of a court deciding an appeal by way of rehearing in that it relies on the evidence received at first instance (subject to the discretion to admit further evidence) and must also have regard to the decision made at first instance. Most importantly, in contrast to a court deciding an appeal by way of re-hearing, when the Tribunal determines an internal review it may quash or vary a decision or remit the matter for re-hearing without having found any error of law or fact if it considers that the preferable decision was not made. Thus, the fundamental task of the Tribunal is always to arrive at the correct or preferable decision.
36. I have had the advantage of seeing and hearing the audio visual recordings of the hearings conducted on 14 April 2015 and 4 June 2015. Thus, to the extent that the member made findings on questions of credit, I am equally well-placed as her to decide those issues. I have also derived much assistance from the carefully considered written and oral submissions provided by two very capable counsel (ie Mr Crocker and Mr Wait). The member did not have the benefit of that assistance. For these reasons I attach significantly less weight to the decision made by the member than I might otherwise have done.
37. AKS was born in 1940. He suffers from a long-standing mental incapacity. In 1968 a chartered accountant, HYS, was appointed by the Supreme Court as the committee of the estate of AKS. It is unnecessary for present purposes to explore the precise powers and functions of a committee.[14] It is sufficient to note that the role was similar to that of an administrator and perhaps also a guardian. HYS died in September 1975.
38. In October 1975, JRY was appointed by the Supreme Court as the committee of the estate of AKS in place of HYS. The order made by the Master conferred upon JRY the powers held by the Public Trustee under ss 111 and 112 of the Mental Health Act 1935. JRY was also given certain powers to deal with investments held on behalf of AKS. He was permitted to retain from the income of AKS's estate such remuneration as may be fixed by the Court. He was also required to provide annual reports about the financial affairs of the estate to the Court and to the Public Trustee.
39. At some time after 1975 the powers formerly exercised by the Supreme Court to appoint a committee were supplanted by the conferral upon the Guardianship Board of jurisdiction to make guardianship and administration orders. The series of orders made by the Guardianship Board between 1993 and 2012 have been annexed to a statutory declaration made by JRY on 15 May 2015. Those orders continued the appointment of JRY as guardian and administrator and also, in most instances, specifically authorised JRY to charge for his work in accordance with s 46 of the G&A Act. The orders fixed differing hourly rates for persons working as a principal, a senior supervisor, senior support staff and intermediate support staff. Those descriptions obviously referred to persons working in JRY's accountancy firm.
40. JRY has always charged fees to the estate of AKS for the work he has performed as the committee appointed by the Supreme Court and pursuant to the appointments made by the Guardianship Board. Whether or not JRY has charged fees for his work as guardian is a matter of contention that does not need to be decided in this internal review. The issue may be relevant when the s 57 review resumes.
41. For the present it is sufficient to note that s 46 of the G&A Act permits, if SACAT so determines, an administrator who carries on a business of, or including, the administration of estates to receive remuneration out of the estate of the protected person for the work involved in administering that estate. The Guardianship Board formerly had the same powers under s 46.
42. The rate of remuneration will be the prescribed rate unless SACAT thinks good reason exists for fixing some higher or lower right in relation to any particular estate and orders accordingly. Clause 1 of schedule 1 to the Guardianship and Administration Regulations 2015 fixes the rate for professional administrators at $71.50 per hour. Before making an order fixing a higher rate of remuneration, SACAT must consider any representations made by the Public Advocate on behalf of the protected person.
43. The G&A Act makes no reference to the payment of guardians and nor does it contemplate payment to administrators other than professional administrators. I consider that the clear effect of the legislative scheme is that only professional administrators may be paid for their services. A lay administrator cannot be paid and nor can a guardian, whether professional or otherwise. The correctness of these propositions was not disputed by counsel for JRY.
44. I have viewed the audio and video recordings made of the hearings conducted in the Tribunal on 14 April 2015 and 4 June 2015. Those recordings have been received into evidence in this internal review. The issues that arose during the hearings in April and June may be summarised as follows:
45. The guardianship orders made by SACAT on 5 June 2015[15] that are relevant to this internal review may be summarised as follows:
46. Further orders were also made in relation to the administration order. Those orders may be summarised as follows:
47. Some little time after the making of the orders on 5 June 2015 the Public Advocate, in consultation with both JRY and with the only child of AKS, UAM, arranged for him to be placed in a different nursing home. The Tribunal was informed that all relevant parties considered the new arrangements to be suitable.
48. The Tribunal was also informed that VGH is no longer involved in providing care to AKS. While a similar arrangement may need to be made in future, that is not a matter of present concern.
49. Mr Crocker submitted that the following issues must be determined in the internal review:
50. At a directions hearing held on 7 July 2015 I drew the attention of counsel to the fact that the orders being reviewed had been made on 5 June 2015. It was not until 12 June 2015 that I had granted an authorisation as President of SACAT under s 61(1) of the SACAT Act authorising legally qualified members to make orders under that provision to protect the interests of a party until questions arising in proceedings had been finally determined. I therefore raised with counsel the possibility that some of the orders made by the member may have exceeded her power and might potentially be treated as void under the principle expressed by the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj.[16]
51. The relevant provisions of s 61 are as follows:
(1) The Tribunal may, on such terms as appear just, make any order that may be necessary to preserve the subject matter of proceedings, or to otherwise protect the interests of a party, until questions arising in the proceedings have been finally determined.
(2) The Tribunal's power to make an order under subsection (1) is exercisable by -
(b) any other legally qualified member of the Tribunal who is authorised by the President of the Tribunal to make orders under this section.
52. Mr Crocker submitted that the jurisdictional basis for the orders made by the member on 5 June 2015 was not derived from s 61. That provision was concerned with the making of orders to similar effect as an injunction. Mr Crocker based that submission on the text of s 61(1). He submitted that the phrase "otherwise protect the interests of a party" must be interpreted consistently with the preceding phrase "to preserve the subject matter of proceedings". I note that this submission departed from that contained at paragraphs 5.1 to 5.4 of Mr Crocker's written submissions.
53. The orders made on 5 June 2015 fell into two broad sets. One of those sets directly and immediately affected the appointment of JRY. His appointment as guardian was revoked and the Public Advocate was appointed as limited guardian for a period of three months. His entitlement to be remunerated from the estate of AKS was also revoked.
54. I consider that the effect of this first set of orders made on 5 June 2015 was not to protect the interests of AKS in a sense analogous to the issue of an interlocutory or interim injunction by a court. Instead, fresh orders with substantive effect were made, albeit for a limited period.
55. Those orders did not need to rely upon s 61. That is because s 57(4) of the G&A Act authorises the Tribunal to vary an order when it conducts a review. I do not consider that the power to vary is only exercisable at the conclusion of the review process. It is easy to envisage circumstances where information becomes known in the course of conducting a review that may require the Tribunal to act promptly to vary an order before it concludes the review. The Parliament must be taken to have foreseen that possibility and s 57(4) should be interpreted accordingly.
56. The second set of orders was directed to the Public Advocate and to the Public Trustee. They were plainly intended to obtain additional information that the member considered necessary for the purposes of the s 57 review. I will refer later to the basis for those orders. For present purposes it is only necessary to say that these orders clearly did not rely upon s 61.
57. I find that the fact that the member had not been authorised to make orders under s 61 as at 5 June 2015 had no bearing on the validity of any of her orders. None of the orders relied upon s 61 as the source of power.
58. As I have already noted, the Public Advocate was appointed on 5 June 2015 as limited guardian of AKS for a period of three months with her powers limited to accommodation and lifestyle issues. During the course of the hearing on 4 June 2015 an oral application was made for the appointment of UAM as guardian in lieu of JRY. The member rejected that application but indicated that it might be renewed subsequently. In my view it would have been far more preferable for the member not to have rejected the application but rather to have deferred a decision to a later hearing when the matter could be considered in greater depth.
59. Be that as it may, JRY indicated her willingness on 4 June 2015 to be appointed as her father's guardian. Her statutory declaration dated 7 August 2015 enlarges upon that matter.
60. JRY lives with her family on a rural property in Western Australia. At least in recent years she has only been able to visit her father about once or twice each year. She has declared that if she is appointed she will visit more often. While, in the past, distance may have been a practical barrier to her appointment, I am satisfied that should she be appointed as guardian she would be able to make prompt decisions about her father should that be necessary. Advances in electronic communication have overcome the problems that may have existed previously.
61. While I have noted that it is not possible or reasonably practicable to obtain the views of AKS, s 5(a) of the G&A Act requires that I must give effect to what would, in my opinion, be the wishes of AKS if he were not mentally incapacitated but only so far as there is reasonably ascertainable evidence on which to base such an opinion. There is no evidence before me as to the relationship between AKS and his daughter other than that she has expressed her willingness to take responsibility for her father's affairs and she has visited him once or twice each year despite her location in Western Australia. I think it likely that he would prefer that his only child be appointed. In any event, I do not have to come to a concluded view on that question.
62. That is because s 29(4) of the G&A Act provides that the Public Advocate may only be appointed as guardian if the Tribunal considers that no other appointment would be appropriate. UAM is willing to act, there is nothing whatsoever to suggest that she might not be a suitable appointee and she is her father's closest living relative. Thus, her appointment is plainly appropriate. The Public Advocate did not contend otherwise.
63. At the conclusion of the hearing I made an order appointing UAM as guardian for her father. Whether that order should be continued will need to be considered when the s 57 review is finalised. While I cannot pre-judge the outcome of that review, my preliminary view based upon the information currently before me is that the appointment of UAM should continue.
64. The Public Advocate was ordered on 5 June 2015 to provide a report to SACAT as to whether there were any decisions that needed to be made in relation to accommodation and lifestyle for AKS. I have already noted that AKS has since been placed in a different nursing home and that all relevant parties consider the new arrangements to be appropriate.
65. A report dated 30 October 2015 has been provided to SACAT by the Public Advocate. In a letter dated 9 November 2015 Iles Selley submitted on behalf of JRY that I should not place any weight on that report without JRY being given the opportunity to be heard, whether orally or in writing. For that reason (and also because of my lack of jurisdiction when conducting an internal review under s 70 of the SACAT Act) I will not refer, at this point, to the content of the report. The issues referred to in the report will need to be considered for the purposes of the s 57 review after giving JRY the opportunity to be heard.
66. I have already held at [17] that I have no jurisdiction under s 70 of the SACAT Act to review the direction given to the Public Advocate. I also have no jurisdiction outside s 70 to review the validity of actions taken by a Tribunal member. That is a matter within the exclusive jurisdiction of the Supreme Court in judicial review proceedings or in an action for a declaration.
67. There is an interesting question as to the application in the SACAT context of the principle identified by the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj.[17] The High Court found that, unless the relevant statute indicated otherwise, a tribunal (or other statutory decision-maker) could treat its own decision as void and of no effect if it had been made outside jurisdiction. As I did not hear any submissions on this significant question, it is not appropriate for me to express any view.
68. While I cannot determine whether the relevant order made by the member constituted a valid exercise of power under s 28 of the G&A Act, I will nevertheless make some comments about the operation of s 28. I will do so because, as far as I am aware, the operation of s 28 has not been judicially considered and my views may be useful. Mr Crocker has submitted that the report ordered on 5 June 2015 could not be requested under s 28 whereas Mr Wait has put the contrary view.
(1) The Public Advocate must, if the Tribunal so directs for the purposes of this Part, investigate the affairs of a person -
(c) who is the subject of application for an order under this Part; or
(d) who has had an advance care directive revoked by the Tribunal under the Advance Care Directives Act 2013.
(2) On completing an investigation carried out at the direction of the Tribunal, the Public Advocate must furnish the Tribunal with a copy of the report of the investigation.
(3) The Tribunal may receive the copy of the report in evidence and may have regard to the matters contained in the report.
70. I will first deal with the observation by Mr Crocker that the member had indicated to the Public Advocate representative who was present at the hearing on 4 June 2015 that she was not proposing to require an investigation under s 28. The final orders made by the member the day after the hearing differed in important respects from those that she had canvassed during the course of the hearing. That is not, of itself, invalid or improper. The member was entitled to revise the preliminary view she had expressed during the hearing before making final orders.
71. It is necessary to apply an objective rather than a subjective test in determining the effect of an order and whether or not it was within jurisdiction. In other words one must assess the actual effect of the order rather than what the member may have suggested that she intended it to mean (although the latter may provide some assistance in determining meaning). The clear practical effect of the order was to require the Public Advocate to carry out an investigation and report to the Tribunal. That is squarely within the terms of s 28.
72. Mr Crocker noted that the application made during the course of the hearing for the appointment of UAM as guardian had been rejected. Thus, there was no current application before SACAT when the order was made. In that light he submitted that it was not possible for the Tribunal to direct that there be an investigation under s 28.
73. Mr Crocker submitted that it is clear from the text of s 28(1)(a) that the Tribunal may only direct the Public Advocate to investigate the affairs of a person who is the subject of an application for an order under part 4 of the G&A Act. AKS is not the subject of an application for an order. He has been covered by orders for a great many years and the current orders are now being reviewed under s 57.
74. Mr Wait submitted that a purposive interpretation ought to be given to s 28 so that the powers of the Tribunal were not unnecessarily circumscribed. Mr Wait noted that both s 57 and s 28 appear in part 4 of the G&A Act. If the narrow interpretation contended for by Mr Crocker were to be adopted that may frustrate the conduct of a review under s 57 by removing the capacity of a member conducting a review to require an investigation and report by the Public Advocate under s 28. Situations could arise where such an investigation and report may be required so as to carry out the review properly.
75. I prefer the construction advocated by Mr Wait. While a literal reading of the text tends to support the narrower view urged by Mr Crocker, it would potentially limit the effectiveness and efficacy of a review under s 57. It is easy to envisage circumstances where a report by the Public Advocate may be of great assistance in conducting a review. For that reason I consider that the effect of the words "who is the subject of an application for an order" in s 28(1)(a) should not be restricted to those cases where there is an application that is yet to be decided by the Tribunal. The phrase ought to be read purposively so as to apply to cases where the application has been determined and an order made. I therefore consider that the member was empowered to make an order requiring that the Public Advocate provide a report under s 28 for the purposes of the s 57 review.
76. As I have already noted several times, in this internal review I cannot determine under s 70 of the SACAT Act whether the direction given to the Public Advocate was the correct or preferable decision. I am simply expressing the view by way of obiter dictum[18] that the member had power to make an order under s 28 and she exercised that power.
77. On 5 June 2015 the Public Trustee was directed to investigate its records and provide any documents to the Tribunal in accordance with rule 80(a) of the SACAT Rules within the next three months that are directly relevant to the proceedings. The order went on to refer specifically to documents fixing the rate of remuneration determined by the Supreme Court that was to be paid to JRY from September 1975 and documents indicating whether JRY remunerated himself from the estate of AKS other than in accordance with a lawful appointment. During the course of the hearing the member had seemingly canvassed the possibility that the Public Trustee should carry out an investigation. If such an order had been made it is highly likely that it would have been invalid. I do not need to consider that question as the orders actually made merely required the Public Trustee to identify documents and to provide those to the Tribunal.
78. I have been advised that the Public Trustee has located many, if not all, of the documents referred to in the relevant order. The documents have not yet been provided to the Tribunal. That will not occur until the Tribunal makes a request.
79. Mr Crocker submitted that the Tribunal has no power to "review" previous decisions of the Guardianship Board to fix the rate of remuneration to which JRY was entitled as administrator. He submitted that the Tribunal is functus officio (ie once exercised, the power is spent) with respect to the previous orders of both the Supreme Court and Guardianship Board made over the past 40 years fixing the rate that JRY was entitled to charge for his work. The statutory power to fix a rate of remuneration could not be exercised more than once in respect of the same period. He also made the same submission in respect of the question whether the fees can be reviewed in light of the fact that the Public Trustee and the Guardianship Board had reviewed and approved JRY's fees over many years. On that basis, Mr Crocker submitted that the orders in question should be set aside.
80. Mr Wait submitted that the orders had been validly made under rule 80(a) of the SACAT Rules. This provides that the Tribunal may, at any time prior to or in the course of a hearing or proceedings, order a person, whether or not a party to those proceedings, to disclose to the Tribunal any documents in its possession or control that are directly relevant to the proceedings. The person may also be required to produce such documents. The documents were said to be relevant to the s 57 review as they would assist the Tribunal in deciding whether or not the appointment of JRY as guardian and as administrator should be continued.
81. The correctness of the submission made by Mr Crocker must be assessed against the relevant provisions of the G&A Act. I have already referred to the provisions of s 46 that govern the entitlement of a professional administrator to receive remuneration from the estate of a protected person. Section 44 provides that a private administrator must provide the Tribunal and the Public Trustee, at such times as the Tribunal determines, a statement of the accounts of the estate showing its assets and liabilities and income and expenditure over a specified period and such other information relating to the estate as the Public Trustee may require. The statement must be verified by statutory declaration of the administrator and supported by such other evidence, if any, that the Tribunal or the Public Trustee may require.
82. Section 44(4) requires the Public Trustee to examine and report to the Tribunal on the statement of accounts. The Public Trustee may cause the accounts to be audited and may also recommend that an item of expenditure be disallowed if the Public Trustee considers that the administrator has not acted in good faith or with reasonable care in making particular expenditure. The Tribunal may approve or disallow an item of expenditure that is the subject of a recommendation by the Public Trustee. If the Tribunal disallows an item of expenditure, the administrator is personally liable to the protected person for that expenditure and to the Public Trustee for the costs it has incurred in relation to the disallowance.
83. In addition to reporting to the Public Trustee as required by s 44 (and also by earlier provisions and by the orders of the Supreme Court), I have been informed that JRY has also had the accounts of AKS' estate independently audited.
84. While I have not examined the historical material assembled by the Public Trustee, I proceed for present purposes on the basis that the Public Trustee has each year carried out its statutory duty of examining the accounts submitted by JRY and reporting to the Tribunal about that matter. There is no information before me to suggest that the Public Trustee has ever recommended to the former Guardianship Board that an item of expenditure should be disallowed. I have been informed that it was the practice of the Guardianship Board not to take any action when it received a financial report from an administrator in the absence of any application by the Public Trustee. That approach was consistent with the fact that s 44 did not give any role to the Board other than approving or disallowing items of expenditure following an application by the Public Trustee.
85. Leaving aside the possible application of the principle identified by the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj,[19] an order made by the former Guardianship Board may only be set aside by the District Court under its statutory power to determine appeals from the Board or, alternatively, by the Supreme Court in the exercise of its judicial review jurisdiction. The transitional provisions contained in the Statutes Amendment (SACAT) Act 2014 do not confer jurisdiction upon the Tribunal to set aside decisions of the Guardianship Board.
86. It is therefore quite clear that if the Guardianship Board had approved or disallowed expenditure under s 44, that decision must be treated as final and conclusive by the Tribunal in the absence of a successful appeal to the District Court or the quashing of the Board's decision by the Supreme Court in judicial review proceedings. The Tribunal has no jurisdiction or power in relation to the issue.
87. In addition to the lack of jurisdiction or power, I also consider for the reasons that follow that the functus officio doctrine operates to preclude re-consideration of the decisions made by the Public Trustee and by the Guardianship Board.
88. At common law, under the functus officio principle, a power will be exhausted by its exercise. However, the strictness of that position has been modified by s 37 of the Acts Interpretation Act 1915 which provides that a power given by any Act to do any act or thing is capable of being exercised from time to time, as the occasion requires, unless the context, or the nature of the act or thing, indicates a contrary intention.
89. If the Guardianship Board, or the Tribunal, has determined under s 44 that a particular item of expenditure should either be allowed or disallowed it might potentially cause significant practical problems if that decision was later to be reversed. Subsequent decisions about expenditure may have been made relying upon the s 44 determination.
90. The potential problems are likely to be more acute in those cases where the Board or Tribunal has granted approval under s 46 for a professional administrator to be remunerated from the estate of the protected person. If that decision were to be reversed a question would arise as to whether the administrator should be required to refund moneys to the estate. However, the G&A Act does not make any provision to deal with that situation. While s 44(6) provides that an administrator must reimburse the estate where an item of expenditure is disallowed, that provision would clearly not authorise the recovery of fees where approval for payment has previously been given under s 46.
91. A further indication that the power cannot be re-exercised in respect of the same period is that a professional administrator will have ordered his or her affairs in reliance upon the approval previously granted under s 46 to charge fees. For example, other chargeable work may have been declined so as to allow this work to be done, staffing arrangements may have been made in the person's professional practice in reliance upon the fees, income distributions may have been made to partners in the practice, income tax may have been paid upon the fees and so forth.
92. For these reasons, I consider that the circumstances indicate a contrary intention for the purposes of s 37 of the Acts Interpretation Act. Thus, that provision does not operate to displace the functus officio principle. To put the matter simply, once a decision has been made by the Public Trustee, the Guardianship Board or the Tribunal in relation to the expenditure incurred by an administrator that decision cannot be varied by the Tribunal.
93. I therefore accept the correctness of the submission by Mr Crocker that upon the Public Trustee and the Guardianship Board carrying out their functions under s 44 they became functus officio. Thus, the past reports and financial statements provided by JRY could only be put to a limited use in the s 57 review.
94. I now turn to consider the submission by Mr Wait that the order requiring the Public Trustee to assemble historical documents was supported by rule 80(a) of the SACAT Rules. The effect of this submission was that when the Tribunal conducts a review under s 57 and considers whether or not the appointment of JRY as administrator and guardian should continue a highly relevant consideration will be his past performance in those roles. I accept that as a general proposition the submission by Mr Wait is plainly correct. However, I do not consider that any relevant assistance could be derived by examining the financial administration of AKS' estate over some 40 years. I consider that it would suffice to review the financial statements over the past three years.
95. It might possibly also be the case that inspection of the recent accounts may assist the Tribunal when it decides JRY's entitlement to remuneration under s 46, should he continue as administrator.
96. Mr Crocker has suggested that, because the member did not expressly revoke the subsisting orders, there was uncertainty as to the effect of the orders made on 5 June 2015 upon JRY's role.
97. The orders made in relation to guardianship were as follows:
98. While the member did not expressly revoke the appointment of JRY as guardian, I consider that the effect of the appointment of the Public Advocate without making any reference to JRY having an ongoing role clearly operated by necessary implication to revoke the appointment that had been in force for many years.
99. The key order made on 5 June 2015 in relation to the appointment of an administrator was:
100. That order makes it quite clear that JRY continued to hold office as administrator. However, a further order provided that he was not entitled to be remunerated.
101. At the conclusion of the hearing on 2 September 2015 I made a new order appointing UAM and JRY as joint administrators. JRY expressly stated that he did not seek any remuneration. I also appointed UAM as sole and full guardian for her father.
102. At the conclusion of the hearing on 2 September 2015 and after hearing from the parties I made orders varying the Tribunal's order of 5 June 2015. The orders I made may be summarised as follows:
103. The determination of this internal review allows the review under s 57 of the G&A Act to be completed. Section 70(6)(c)(ii) of the SACAT Act provides that after an internal review the Tribunal may return a matter to the Tribunal as constituted at first instance for further action. The member who commenced the s 57 review is now working solely in the Housing and Civil Stream of SACAT based at Pirie Street rather than in the Community Stream at Collinswood. The latter Stream is responsible for, amongst other areas of jurisdiction, the G&A Act. For that reason and others, I consider it preferable that the matter should not be referred back to that member.
104. Nevertheless, I must comply with 70(6)(c)(ii). Thus, I will return the matter to the particular member but immediately determine that it be reallocated by exercising my powers under s 23(4)(a) to alter who is to constitute the Tribunal for the purpose of dealing with the matter. I do not consider that action to be contrary to the direction in 70(6)(c)(ii) that the matter be returned to the same member. When Parliament enacted that provision it must be taken to have been aware that members may become unavailable for substantial periods or that it is otherwise not possible to return the matter thereby requiring the President to exercise his or her powers to reassign a matter regardless of the direction in 70(6)(c)(ii).
105. While I could readily reallocate the matter to a member other than myself, I consider that the most efficient approach is for me to complete the review. That avoids the need for another member to familiarise themselves with the substantial history of the matter.
106. It appears to me that the primary issues to be dealt with at the review are the appointment of a guardian and of an administrator. That is because the appointments that I made on 2 September 2015 were only intended to operate until the s 57 review was completed. If JRY is to continue as administrator and seeks remuneration, it will be necessary to decide whether approval should be granted, and if so, at what rate.
107. I will hear the parties as to whether any other issues need to be considered at the review. That matter can be dealt with at a directions hearing.
108. For the reasons set out above, I have made the following findings and observations:
109. The matter is to be listed before me for a directions hearing in relation to the completion of the s 57 review.
[1] [1980] FCA 87; (1980) 47 FLR 80 at 100.
[2] (1990) 171 CLR 321 at 334-337.
[3] See Glenauchen Pty Ltd v Circuit Finance Pty Ltd [2001] SASC 61.
[4] See Mick Lucas Pty Ltd v Licensing Commissioner (1987) 45 SASR 312 at [3].
[5] See Curnow v Police [2008] SASC 84; (2008) 100 SASR 290.
[7] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, Gleeson CJ, Gummow and Kirby JJ at [20]; Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616, Mason J at 619-622.
[8] Council of the City of Greater Wollongong v Cowan [1955] HCA 16; (1955) 93 CLR 435.
[10] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, Bowen CJ and Deane J at 419.
[11] Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172, Gaudron, McHugh, Gummow and Hayne JJ at [23]; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194, Gleeson CJ, Gaudron and Hayne JJ at [14]; McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423, Gleeson CJ and Kirby J at [9].
[13] See R v Lutze (2014) 121 SASR 144, Vanstone and Parker JJ at [45]-[46]; R v Horstmann (2010) 269 LSJS 42; [2010] SASC 103, Kourakis J (as he then was) at [36].
[14] Osborne's Concise Law Dictionary defines a committee as the person formerly vested by the Lord Chancellor with the estate of a "mental patient". The Supreme Court would apparently have derived that power from the Court of Chancery under s 17 of the Supreme Court Act 1936 and cognate provisions in antecedent statutes.
[15] I note that the member headed her orders "Orders of the Tribunal on 4 June 2015" but in fact the orders were published on 5 June 2015. I will refer to them by the date of publication.
[18] Comments made by a judge in their reasons that were not strictly necessary to decide the proceedings. While such comments do not create a legally binding precedent, they may provide guidance and may potentially have a significant persuasive effect in later cases.
(2000) 203 CLR 172
(1990) 171 CLR 321
(1976) 135 CLR 616
(2000) 203 CLR 194
(1955) 93 CLR 435
(2008) 100 SASR 290
(1980) 47 FLR 80
(1979) 46 FLR 409
(2003) 214 CLR 118
(1936) 55 CLR 499
(2006) 228 CLR 423
(1987) 45 SASR 312
(2002) 209 CLR 597
(2014) 121 SASR 144