What happened
In 2004 BM executed an instrument appointing her daughter Samantha (the plaintiff) as her enduring guardian with functions covering accommodation, health care, personal services and consent to medical treatment. That appointment became operative when BM's dementia rendered her incapable of managing her own person. In 2005 BM signed a statutory declaration explaining that she had left the bulk of her estate to Samantha because Samantha had provided the majority of physical and emotional support, performed domestic tasks, and was the daughter she could trust; the declaration detailed her estrangement from her other daughters, Cynthia and Helen.
By mid-2011 BM, then aged 88, was living with Samantha in a house at Clontarf that Samantha had owned since 1991. On 15 July 2011 BM experienced a significant bleeding episode. Samantha's evidence to the Tribunal was that she discovered a bloodstain the size of a bread-and-butter plate at about 1 am, attempted unsuccessfully to telephone the general practitioner at 1.30 am, and did not call an ambulance because BM appeared coherent and refused to go to hospital. Samantha attributed the bleed to a vaginal polyp treated years earlier on a non-urgent basis. Later that afternoon a larger bleed occurred and an ambulance was called. BM was admitted to Manly Hospital and ultimately transferred to a nursing home at Manly Vale.
Disagreement quickly emerged between Samantha and her sisters about the standard of care at Manly Vale and the appropriate future placement. Cynthia and Helen, one of whom was a qualified health professional in aged care, considered the care inadequate. On 18 November 2011 they applied to the Guardianship Tribunal for a guardianship order. On 28 November 2011 the Tribunal made a financial management order committing BM's estate to the NSW Trustee and Guardian after considering evidence of share transfers from BM to Samantha.
Temporary guardianship orders appointing the Public Guardian were made on 5 January, 2 February and 16 February 2012. On 25 July 2012, after a contested hearing at which all three daughters gave evidence, the Tribunal revoked the Public Guardian's appointment and appointed Cynthia and Helen as joint guardians for 12 months with authority over accommodation, health care, medical and dental treatment. The Tribunal found that BM was incapable of managing her person by reason of dementia, that a guardianship order was necessary, that Samantha had made a series of decisions (concerning the bleed, removal of a Norspan patch, and use of a wheelchair with footplate) that caused BM unnecessary discomfort, that these decisions revealed a pattern of poor or delayed decision-making, and that a clear conflict of financial interest existed arising from the share transfers and the ongoing investigation into possible misappropriation.
Samantha commenced proceedings in the Supreme Court under s 67 of the Guardianship Act 1987 seeking to set aside the 25 July 2012 orders. She filed an amended summons on the hearing date that identified three alleged errors of law. White J heard the matter on 21 March 2013 and delivered an ex tempore judgment the same day dismissing the amended summons and ordering Samantha to pay the defendants' costs. His Honour anonymised the parties' names pursuant to s 57.
Why the court decided this way
White J began by restating the statutory framework. Section 67 confers a right of appeal as of right on a question of law and otherwise by leave. Citing Gummow J in TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation, his Honour emphasised that the question of law is both the trigger for and the entire subject matter of the appeal; the Court does not conduct a rehearing of factual questions.
His Honour then summarised the principles governing leave drawn from K v K, Slinko v Guardianship and Administration Tribunal and the other cited authorities. Leave is not granted merely because a judge might have reached a different factual conclusion. Parliament has entrusted primary fact-finding to the Tribunal. The Court intervenes on factual matters only where the process is so unorthodox as to be likely to produce an unfair result. The paramount consideration remains the welfare and interests of the person with disabilities (s 4).
Turning to the three alleged errors, White J first addressed the s 14(2)(a)(i) point. He accepted that the 2004 enduring guardian appointment and the 2005 statutory declaration contained views relevant to the making of a guardianship order. However, he held that the Tribunal had in fact had regard to those documents. Although they were not discussed under the heading "The views of [BM]", the very next paragraph of the Tribunal's reasons recorded Samantha's submission that BM had chosen her over her sisters and that this choice should be respected. The Tribunal also analysed the statutory declaration in detail, concluding it was neither reliable nor conclusive because it was inconsistent with other evidence and had been prepared for a different purpose seven years earlier. Because the central issue before the Tribunal was whether an order should be made notwithstanding the existing appointment, it could hardly have failed to consider the documents. Accordingly there was no error of law and no error of fact warranting leave.
The second alleged error concerned the adequacy of reasons on the "first bleed". The Tribunal had rejected Samantha's evidence that the morning bleed was minor and had accepted the second defendant's evidence of what Samantha had told her on the evening of 15 July: that after BM had "wet herself" there was "blood everywhere". The Tribunal also relied on Samantha's own 1.30 am telephone call to the general practitioner to ask whether an ambulance should be called and on the medical evidence linking acute blood loss to cerebral damage. White J held that these reasons were clear and adequate. Citing Mifsud v Campbell and the recent NSW Court of Appeal decision in SAS Realty Developments Pty Ltd v Kerr, his Honour noted that the content of reasons depends on the circumstances. Here the Tribunal had identified the inconsistent contemporaneous statement, the objective significance implied by the telephone call, and the medical sequelae. No error of law arose, and the careful treatment of the issue provided no basis for a grant of leave on a factual question.
The third alleged error was that the Tribunal had applied the wrong threshold when considering financial conflict. Samantha argued that s 17(1)(b), which prohibits appointment of a guardian where there is an "undue conflict" (particularly financial), supplied the applicable standard; the Tribunal could not treat a mere conflict as supporting the need for an order. White J rejected the submission. Section 17(1)(b) is a limitation on who may be appointed once the Tribunal has decided that an order should be made. It does not constrain the anterior question under s 14 whether an order is required at all. The Tribunal was therefore entitled to treat the allegations of misappropriation, the substantial share transfers in November 2011, the plaintiff's changing explanations (including that she had altered share reference numbers to "secure" them after her sisters removed financial records), and the ongoing investigation by the NSW Trustee as raising a real conflict relevant to both the need for an order and the suitability of Samantha continuing as decision-maker. The plaintiff's offer to fund any shortfall in accommodation costs did not remove that relevance. The Tribunal had made clear that the conflict finding was not the sole basis for its decision; the pattern of poor decision-making provided an independent foundation.
Finally, White J observed that even if any of the challenged findings involved error, the unchallenged findings concerning the pattern of poor decision-making would themselves have justified the orders. In those circumstances it would not have been appropriate under s 67(3) to set the orders aside. The amended summons was therefore dismissed with costs.
Before and after state of the law
Prior to this decision the Guardianship Act 1987 had been in substantially its present form for more than two decades. Section 14(2) required the Tribunal, in deciding whether to make a guardianship order, to have regard to the views of the person, the importance of preserving family relationships, cultural and linguistic environments, and the practicability of services without an order. Section 17(1)(b) prohibited appointment of a person as guardian unless the Tribunal was satisfied there was no undue conflict between the interests (particularly financial interests) of the proposed guardian and the person under guardianship. The case law had established that an appeal under s 67 on a question of law was strictly confined (TNT Skypak) and that leave on factual questions should be granted sparingly (K v K). The obligation to give reasons had been held to vary with the context (Mifsud v Campbell).
This judgment clarified three points. First, the obligation under s 14(2)(a)(i) to have regard to the person's views is not satisfied or breached by mechanical reference to headings; the reasons must be read as a whole. Second, the statutory obligation to give reasons is satisfied where the Tribunal identifies the evidentiary conflict, states which evidence it accepts, and explains why (here by reference to contemporaneous statements and objective conduct). Third, and perhaps most significantly, the "undue conflict" standard in s 17(1)(b) does not set the threshold for relevance of financial conflict when the Tribunal is deciding under s 14 whether an order should be made at all. Any conflict, whether undue or not, may be taken into account in assessing whether the existing decision-maker can be relied upon to act in the protected person's best interests. The decision therefore reinforced the Tribunal's broad discretion while emphasising the primacy of the protected person's welfare.
Subsequent decisions have continued to cite the judgment for these propositions, but the statutory text itself has not been amended. The protective jurisdiction therefore continues to balance respect for previously expressed wishes against the paramountcy of current welfare.
Key passages with plain-English translation
Paragraph 4 quotes Gummow J: "The existence of a question of law is now not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself." In plain English this means that when the Act says you can appeal "on a question of law", the appeal is only about that legal question; the court does not simply re-hear the whole case.
Paragraph 9 states: "Parliament has entrusted to the Tribunal the primary function of making the factual determinations required for a guardianship order, and that the Court should not grant leave to appeal unless the Tribunal has gone about that fact finding process in a way which is so unorthodox as to be likely to produce an unfair result. It is not enough that a judge might consider that he or she would have reached a different conclusion on the facts from the conclusion reached by the Tribunal." Translation: The Tribunal is the main decision-maker on the facts. The Supreme Court will not interfere just because it might have decided differently; there must be something seriously wrong with the way the Tribunal went about its job.
Paragraph 33: "It is a mandatory requirement that the Tribunal have regard to the views of the affected person in considering whether or not to make a guardianship order in respect of the person." This simply repeats the statutory language but confirms it is compulsory. The following paragraphs then explain that "have regard to" does not require the Tribunal to list the documents under one particular heading if it is obvious from the whole judgment that they were considered.
Paragraph 52: "The extent to which the Tribunal is required to give reasons for its decisions depends upon the particular circumstances of the matter that the Tribunal is considering (Mifsud v Campbell (1991) 21 NSWLR 725 at 728 ...). In my view the reasoning of the Tribunal on this issue is clear and adequate." Translation: There is no fixed formula for how much explanation is needed. In this case the Tribunal's explanation of why it believed the morning bleed was serious was good enough.
Paragraph 62: "In my view, the Tribunal is entitled to have regard to a conflict, whether undue or not, between the interests of the protected person and a person who is acting in the role of guardian in deciding whether a guardianship order should be made. There is no inconsistency between the course the Tribunal took and the requirements of s 17." This is the key legal holding. Plain English: The rule that stops the Tribunal appointing someone with an "undue" conflict does not stop it from considering any conflict at all when it is deciding whether anyone needs a guardian in the first place.
Paragraph 69: "However, even if I am wrong in that conclusion, it does not follow that the orders of the Tribunal should be set aside. Independently of the grounds for the Tribunal's decision that were attacked, the Tribunal made findings which would themselves support the orders that were made." Translation: Even if the appeal judge thought the Tribunal had made a mistake on one point, the other unchallenged reasons were strong enough to keep the orders in place.
What fact patterns trigger this precedent
This judgment is triggered whenever an appeal is brought under s 67 of the Guardianship Act 1987 and the appellant alleges that the Tribunal (a) failed to have regard to previously expressed wishes contained in an enduring guardian appointment or statutory declaration, (b) gave inadequate reasons for preferring one witness's account of a critical factual episode, or (c) treated a financial conflict as relevant without first labelling it "undue". It applies with particular force where the protected person is elderly, suffers from dementia, has made an earlier appointment of one family member, and subsequent family conflict has arisen over accommodation and medical decisions. The precedent is also engaged where the Tribunal has identified a pattern of several seemingly small decisions (bleeding episode, pain patch, wheelchair) that together suggest poor judgment, and where allegations of asset dealing between the protected person and the appointed guardian are under investigation by the NSW Trustee. Because the Court must have regard to s 4 principles, the precedent is most likely to be cited in cases where the welfare of the protected person is said to require removal of a previously appointed family guardian despite that person's earlier wishes. It is not limited to appeals from final orders; the same reasoning would apply to appeals from temporary orders or reviews.
How later courts have treated it
Although the judgment itself post-dates the authorities it cites, White J's treatment of those authorities has been influential. His Honour's adoption of the TNT Skypak formulation of the scope of a "question of law" has been followed in subsequent protective list decisions when parties have attempted to dress up factual complaints as legal errors. The articulation in paragraphs 8-10 of the leave principles, drawing on K v K and Slinko, has been cited as the authoritative summary of the restrictive approach the Court should take before interfering with the Tribunal's factual findings. The holding that adequacy of reasons is context-dependent and that the Tribunal's reasons on the bleeding episode were sufficient has been applied in later cases where parties have complained that the Tribunal failed to mention every piece of evidence.
The central proposition at paragraph 62 distinguishing the "undue conflict" test in s 17(1)(b) from the broader relevance of any conflict to the s 14 inquiry has been treated as settling the point; later single-judge decisions have not required the Tribunal to use the word "undue" when explaining why a conflict supports the making of an order. The fallback reasoning in paragraph 69 that unchallenged findings can sustain the orders even if error is shown on one issue has been followed in cases where only some of the Tribunal's rationales are attacked on appeal. Overall the judgment has been treated as reinforcing the limited supervisory role of the Supreme Court in the protective jurisdiction and as confirming that the Tribunal enjoys a wide margin of appreciation on both fact-finding and the weighing of statutory considerations.
Still-open questions
White J expressly left open the precise scope of the obligation under s 14(2)(a)(i). At paragraph 35 he noted that the submission assumed the Tribunal must consider not only current views but previously expressed views, and not only views about whether an order should be made but views on any matter relevant to that question. Because he found on the facts that the Tribunal had had regard to the documents, it was unnecessary to decide the outer limits of the obligation. That question therefore remains for a future case in which the Tribunal has made no reference at all to an enduring guardian appointment or advance care directive.
A second open question is the interaction between an existing enduring guardian appointment and the making of a subsequent guardianship order when the Tribunal finds that the appointed guardian has acted appropriately on some issues but not others. The Tribunal in this case found a "pattern" of poor decision-making, but the judgment does not explore the minimum number or quality of erroneous decisions required before an existing appointment can safely be overridden.
Third, the judgment does not define how serious or how well substantiated an allegation of financial misappropriation must be before it can ground a finding of conflict. The Tribunal here relied on an ongoing investigation by the NSW Trustee and on the fact that a substantial proportion of shares had been transferred. Whether a mere unparticularised complaint would suffice remains undecided.
Finally, although the judgment confirms that the Court may decline to set aside orders under s 67(3) where unchallenged findings provide an independent basis, it does not address the position where the unchallenged findings are themselves infected by the same legal error that vitiates the challenged findings. That nicety awaits a future appeal.