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[2013] NSWSC 253
defendant. Amended summons dismissed. Plaintiff pay the defendants' costs.
BM, aged 88 and living with dementia, could no longer manage her own affairs. She had formally appointed one daughter (Samantha) to make decisions for her and had written a declaration explaining why she trusted Samantha more than her other two daughters. After a serious bleeding episode in 2011 the sisters could not agree on BM's care. The Tribunal decided a formal guardianship order was needed, removed Samantha as decision-maker and appointed the other two sisters instead. It found Samantha had made several poor decisions that caused BM discomfort and that there was a financial conflict because Samantha had received most of BM's shares and was under investigation for possible misappropriation. Samantha appealed to the Supreme Court claiming the Tribunal had ignored BM's earlier wishes, had not properly explained why it believed the bleeding was serious from the start, and had used the wrong legal test about the money conflict. White J ruled that the Tribunal had considered BM's earlier wishes even though it did not list them under one heading, had given clear reasons for believing Samantha had minimised the morning bleed, and was allowed to treat any financial conflict as relevant when deciding whether an order was needed. The appeal was dismissed and Samantha was ordered to pay the costs.
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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.
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.
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.
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.
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.
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.
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.
Judgment 1HIS HONOUR: This is an appeal and an application for leave to appeal pursuant to s 67 of the Guardianship Act 1987 in respect of a decision and orders of the Guardianship Tribunal made on 25 July 2012. Pursuant to s 57 of the Guardianship Act, the names of the protected person and of the parties and witnesses before the Tribunal will be anonymised so that their identities cannot be ascertained. In these reasons I will call the third defendant, who is the protected person in question, by the initials "BM". The plaintiff is a daughter of BM. Where necessary I will refer to her by the pseudonym "Samantha". The first and second defendants are the other daughters of BM and, where necessarily, I will refer to them by the pseudonyms of "Cynthia" and "Helen". 2The Guardianship Tribunal made a temporary guardianship order on 5 January 2012 appointing the Public Guardian as BM's guardian. That order was renewed as a further temporary guardianship order on 2 February 2012 and 16 February 2012. On 25 July 2012, it appointed the first and second defendants as joint guardians for BM for a period of 12 months, with authority to make decisions with respect to her accommodation, health care, medical and dental treatment. 3 The plaintiff seeks to have those orders set aside. All of the parties were parties to the proceeding before the Tribunal. Pursuant to s 67 of the Guardianship Act, the plaintiff is entitled to appeal as of right from the decision of the Tribunal on a question of law and otherwise by leave. 4The right to appeal "on a question of law" is narrower than a right to appeal on a matter that involves a question of law. As Gummow J said in TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178: "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." 5A notice of appeal, where an appeal lies on a question of law, should articulate with precision the question of law in the appeal. In Hoe v Manningham City Council [2011] VSC 37, Pagone J said (at [4]) that: "The question of law is the trigger for an appeal but is also the entire subject matter of the appeal and for both purposes it is essential that the question of law said to have been erroneously decided is identified exactly." (See also Smalley v Secretary, Department of Health and Ageing [2011] FCA 302 at [27] and following; Palassis v Federal Commissioner of Taxation [2011] FCA 1305 at [35] and following; B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187 at [47] and [53]-[54]; (2008) 74 NSWLR 481 at 495-496 and 497-498.) Where there is an appeal on a question of law only, the right of appeal does not extend to a rehearing of factual questions. 6The summons, as originally filed, did not seek to identify any questions or even errors of law, as distinct from what were asserted to be errors in the Tribunal's reasons. By an amended summons filed today, counsel for the plaintiff identified what are said to be errors of law in the Tribunal's reasons. In the course of his oral submissions, counsel formulated those alleged errors as questions on which an appeal lay, as of right. 7Insofar as the alleged errors that were ultimately pressed are not errors of law, the plaintiff seeks leave to appeal. The principles in relation to a grant of leave to appeal have been addressed in a number of cases, in particular K v K [2000] NSWSC 1052; Slinko v Guardianship and Administration Tribunal [2006] QSC 39; [2006] 2 Qd R 279; EB v Guardianship Tribunal [2011] NSWSC 767; P v D1 [2011] NSWSC 257; Application of SJ [2011] NSWSC 372; Re B (No. 1) [2011] NSWSC 1075; and Re F [2013] NSWSC 54. 8Without intending to be exhaustive, the considerations governing a determination as to whether leave should be given will include whether or not a question raised involves a matter of administration or policy which might have general application, whether or not the Tribunal's decision has been arrived at after the Tribunal members have directed themselves properly and fairly on the facts and not gone wrong in law, whether there is an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand, and whether the factual error was unreasonably arrived at and clearly mistaken. (See K v K at [14] and Slinko v Guardian Administration Tribunal at [9]-[16].) 9Underlying these constraints is the need to recognise that 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. 10The grant or withholding of leave is to be exercised having regard to the general principles in s 4 of the Act, including the principle that the welfare and interests of the person with disabilities is to be given paramount consideration. But that is not to say that the gateway requiring leave to appeal can be emasculated by the Court's too readily engaging in a detailed review of the facts with a view to detecting possible error. 11The background to the application before the Tribunal is as follows: At the time of the hearing before the Tribunal last year, BM was 88. She suffers from dementia. It is common ground that she is unable to care for herself. It appears that until about 15 July 2011, she lived in a home at Clontarf which had previously been her home, but the ownership of which had been transferred to the plaintiff in 1991. 12On 29 May 1998, BM executed an enduring power of attorney in favour of the plaintiff. On 20 September 2004, she executed an instrument appointing the plaintiff as her enduring guardian with the functions of deciding where she should live, what health care she should receive, what personal services she should receive and giving or withholding consent to medical or dental treatment. That appointment became effective when BM, because of disability, became totally or partially incapable of managing her person. 13On 24 June 2005, BM signed a statutory declaration which was expressed to be made to deal with the contingency that either of Cynthia or Helen might contest a will she had made on 6 August 2004. In the statutory declaration BM stated that she had left the bulk of her estate to her daughter, Samantha, that is, the plaintiff, as Samantha had been the one who had supported her physically and emotionally, especially before and after her father's death, and had assisted her with domestic chores such as cooking, washing, ironing, cleaning, shopping and making her clothes, had driven her to appointments when needed, done her banking and carried out any secretarial duties that she needed. In the statutory declaration she also said that her relationship with Samantha was very close, not only because she lived with BM, but because Samantha was the one she knew she could trust or rely on when she needed to. The statutory declaration spoke of estrangement between BM and her other daughters, and details were given in the statutory declaration. 14Following BM's admission to Manly Hospital on 15 July 2011, she became a resident at a nursing home at Manly Vale. In its reasons for decision of 5 January 2012 the Tribunal recorded that there was no agreement between the plaintiff and her two sisters as to where their mother should reside. The first and second defendants' view was that she was currently not being adequately cared for in the Manly Vale nursing home and should be transferred to another facility. 15On 18 November 2011, the first and second defendants filed an application with the Guardianship Tribunal seeking a guardianship order with respect to BM. On 28 November 2011, there was listed before the Tribunal both an application for a guardianship order and an application for a financial management order. It appears that the application for the financial management order was dealt with on that day. An order was made committing the management of BM's estate to the NSW Trustee and Guardian. 16The Tribunal's reasons for its orders of 25 July 2012 proceeded generally along the following lines. The Tribunal found that because of her disability, being dementia, BM was incapable of managing her person. This finding meant that the Tribunal was satisfied that BM was in need of a guardian and provided the jurisdictional basis for its making a guardianship order in respect of BM pursuant to s 14(1) of the Guardianship Act. 17The Tribunal then addressed the question of the views of the parties as to whether a guardianship order should be made and, if one were made, who should be appointed as guardian. This was in compliance or purported compliance with its obligation under s 14(2)(a) of the Guardianship Act. That subsection provides: "14 Tribunal may make guardianship orders ... (2) In considering whether or not to make a guardianship order in respect of a person, the Tribunal shall have regard to: (a) the views (if any) of: (i) the person, and (ii) the person's spouse, if any, if the relationship between the person and the spouse is close and continuing, and (iii) the person, if any, who has care of the person. (b) the importance of preserving the person's existing family relationships, (c) the importance of preserving the person's particular cultural and linguistic environments, and (d) the practicability of services being provided to the person without the need for the making of such an order." 18The Tribunal then addressed the question of the importance of preserving BM's existing family relationships as required by s 14(2)(b) and concluded that it was satisfied that if no guardianship order were made, the plaintiff would not be willing to share information about BM with her sisters. The Tribunal concluded that excluding the first defendant from such information would interfere with her role in relation to BM and not preserve family relationships. Later in its reasons it concluded that the plaintiff had sought to exclude the first defendant from information about BM when she knew that the first defendant was a highly qualified health professional in aged care, and that her mother was not in a good condition. The Tribunal said that it appeared to it that that decision was not made in BM's best interests. 19The Tribunal made mention of the requirement of s 14(2)(c), observing that the making of the guardianship order would not impact on BM's cultural or linguistic environment. Nothing turns on this matter. 20It then addressed the matter in s 14(2)(d) as to the practicability of services being provided to BM without the need for making a guardianship order. Under this heading the Tribunal dealt with evidence of an episode of bleeding. It was this episode that led to BM's being admitted to hospital on 15 July 2011. The plaintiff says that the Tribunal gave inadequate reasons for its conclusions on this question and that it erred in the way it dealt with this matter. I will return to those submissions in due course. 21The Tribunal then addressed the matters that, first, BM had been moved from the Manly Vale nursing home to a nursing home at Lansdowne Gardens where her weight had improved such that she now had a good appetite and was maintaining a good weight. It then addressed the position of the parties in relation to the move to Lansdowne Gardens and stated that the plaintiff had resisted the move, saying through her solicitors that the question was whether her mother would suffer a downturn in her psycho-social state as a result of a transfer to another facility. But the Tribunal observed that the transfer had been a successful one. 22Next the Tribunal addressed an issue concerning the removal of a Norspan patch from BM. It recorded that the plaintiff had disagreed with the proposal for removal of the patch, stating that her mother was still in pain. The Tribunal's ultimate conclusion in this respect was that there was not a proper objective basis for that view. The patch was removed, and in retrospect it could be seen that this was in BM's best interests. 23Next it addressed an issue concerning the use of a wheelchair. The Tribunal accepted that the plaintiff had insisted that BM be placed in a wheelchair with a footplate instead of a "fallout chair" and that as a result, BM had suffered minor injuries. It accepted that the plaintiff's motives for wanting her mother in a wheelchair were to allow her more mobility and thus improve her quality of life, but said that, given the injuries that were suffered, it was clear that the use of the wheelchair was not in BM's best interests. 24Having regard to these conclusions and also the conclusion which it reached in relation to the episode concerning bleeding, to which I will come in due course, the Tribunal concluded that some of the decisions made for BM by the plaintiff caused BM, at the very least, unnecessary discomfort and were not in her best interests. It said that, considered individually, these decisions could be seen as simply an error of judgment, but considered together, it concluded that they established a pattern of poor or delayed decision-making. The Tribunal found that it was likely that the plaintiff would continue to make decisions which were not in her mother's best interests if she were to be her mother's substitute decision-maker. 25The Tribunal then went on to consider a question as to whether there was a conflict of financial interest. It is submitted for the plaintiff that the Tribunal erred and erred on a matter of law in relation to this question. I deal with this later in these reasons. The Tribunal's conclusions in regard to a conflict of interest was that there was a clear conflict of financial interest between the plaintiff and BM, and in the Tribunal's view in the circumstances of this case there was a need for a guardianship order. 26Having regard to its earlier conclusions that it was likely that the plaintiff would continue to make decisions which were not in BM's best interests if she were to be her mother's substituted decision-maker, it is clear that the findings of a conflict of financial interest were not the only basis on which the Tribunal concluded that there was a need for a guardianship order. 27The Tribunal then addressed issues relating to the suitability of the first and second defendants to be appointed as joint guardians of BM. It concluded that they had personalities that were generally compatible with BM, did not have any real conflict of interest, were willing and able to exercise the role and functions of a guardian, and that it was in BM's best interests that they be appointed as her joint guardians. 28The plaintiff contended that in reaching its decision, the Tribunal made three errors of law. The first was that, contrary to s 14(2)(a)(i) of the Guardianship Act, it failed to have regard to the views of BM herself, evidenced by the appointment of the plaintiff as her enduring guardian on 20 September 2004 and as set out in the statutory declaration dated 24 June 2005. Framed as a question of law, the question is whether the Tribunal applied s 14(2)(a)(i) in coming to its decision. 29The second alleged error of law was that the Tribunal is said to have failed to provide adequate reasons as to why it preferred the evidence of the second defendant over the evidence of the plaintiff with respect to BM's "first bleed" on 15 July 2011. Framed as a question, the question is whether the Tribunal provided adequate reasons for such findings. 30The third alleged error of law is that when considering the question of whether the plaintiff had a conflict of financial interest with BM, the Tribunal applied what was called the "incorrect threshold". As I understood the submission, it was that in considering the relevance of a conflict of financial interest, the Tribunal would have to have found that there was an "undue conflict" before taking that into account in deciding that a guardianship order was required and that the plaintiff should not remain as BM's guardian pursuant to the appointment of 20 September 2004. 31Counsel submitted that this alleged error could be framed as a question of law that when considering other matters relevant to whether the guardianship order should be made, in particular an alleged conflict of financial interest, whether the Tribunal must apply a consistent threshold or standard, as appears in other sections, in particular s 17. 32The plaintiff also submitted that the Tribunal made erroneous findings of fact in relation to the same subject matters, which warranted a grant of leave. 33I turn first to the alleged failure of the Tribunal to comply with s 14(2)(a)(i). 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. The Tribunal said under this heading: "[BM] was unable to attend the hearing or talk to the Tribunal to present her views because of her disabilities." 34This was said to be an error because, so it was said, BM had expressed her views on matters relevant to whether the guardianship order should be made in the instrument appointing the plaintiff as enduring guardian and in the statutory declaration. 35This submission assumes that the views that the Tribunal is required to take into account under s 14(2)(a)(i) are not only current views, but the previously expressed views of the affected person. It also assumes that the views that the Tribunal is required to take into account are not only views as to whether a guardianship order should be made, but views on matters relevant to whether a guardianship order should be made. I say that because neither in the instrument appointing the plaintiff as enduring guardian, nor in the statutory declaration, did BM express any view as to whether a guardianship order should be made. That question had not arisen at those times. 36However, I do accept that the content of those instruments made by BM was relevant to whether or not a guardianship order should be made. 37It is unnecessary in these reasons to decide the scope of the obligation of the Tribunal under s 14(2)(a)(i) because it is clear that the Tribunal did have regard to what BM had said in both the instrument appointing the plaintiff as her enduring guardian and in the statutory declaration. The fact that it did not refer to those instruments under the heading "The views of [BM]" does not mean that it failed to have regard to the views expressed in those documents. 38In the very next paragraph of its reasons the Tribunal referred to the submission made by the plaintiff that it was in her mother's best interests that no guardianship order be made because she was able to make the necessary decisions as her mother's enduring guardian. The Tribunal recorded the submission of the plaintiff that "[BM] chose her over her sisters as the decision-maker as she was close to and supportive of her mother and this was in contrast with [BM's] relationship with [the first and second defendants]". This was in the context of the Tribunal's referring to the plaintiff's appointment as enduring guardian. 39The Tribunal also referred in some detail to the statutory declaration. The Tribunal did not accept the contents of the statutory declaration as being reliable or conclusive because it said that it was not consistent with other evidence. It also said that the statutory declaration had been made for a different purpose some seven years ago. 40In my view it is clear that the Tribunal did have regard to the expression of BM's views in the two documents in reaching its decision as to the need for a guardianship order. It could hardly have failed to do so as the principal issue it had to decide was whether or not a guardianship order should be made notwithstanding the appointment of the plaintiff as BM's enduring guardian. 41In my view, there was neither error of law nor error of fact in this part of the Tribunal's reasons. 42The next alleged error of law was failure to provide adequate reasons with respect to BM's "first bleed" on 15 July 2011. 43The Tribunal recorded evidence given by the plaintiff that around 1.00 am on 15 July 2011 BM woke and was bleeding. The plaintiff said that there was a bloodstain on the sheet which was about the size of a bread and butter plate and that after she changed the sheet she attempted to call a Dr Marcus. This was at about 1.30am. When the call rang out she redialled and the call again rang out. The plaintiff said that BM was then coherent and her normal self and said that she did not want to go to the hospital. The plaintiff acquiesced. 44The plaintiff gave evidence to the Tribunal that she thought the bleed was probably the result of a vaginal polyp which BM had had some six or seven years ago before which was treated on a non-emergency basis. 45The plaintiff's evidence was that BM went back to bed but at about 1.30 pm, after she heard her mother trying to flush the toilet, she found a significant amount of blood and then called the ambulance. BM was then admitted to Manly Hospital. 46The Tribunal found that what the plaintiff had called a "first bleed" involved a significant amount of blood and that the plaintiff had sought to minimise the seriousness of the event at the hearing. It reached that finding on two bases. First, it said that it accepted the evidence of the second defendant as to what she had been told on 15 July by the plaintiff concerning the loss of blood. The second defendant had said in her statement that she was contacted by the plaintiff at about 10 o'clock at night on 15 July who told her in substance that at about 1 o'clock in the morning, after her mother had wet herself, that there was blood everywhere. The second defendant gave other details about BM's condition at the time that she said had been conveyed to her by the plaintiff to which it is unnecessary to refer in these reasons, but is inconsistent with the plaintiff's version of events as to what had happened in the early hours of the morning of 15 July 2011. 47Thus, one reason for the Tribunal's rejecting the plaintiff's evidence as to what had happened in the early hours of the morning on 15 July 2011 was that it found that the plaintiff had made an inconsistent statement about that to the second defendant. 48The plaintiff had given evidence to the Tribunal that she tried to ring Dr Marcus at between 1.30 and 2 o'clock in the morning and she was asked what was her thinking about the issue then, and why did she then ring Dr Marcus. The plaintiff answered: "Just to see if I should do something with mum, you know, do something. MEMBER: Such as? PLAINTIFF: Ring an ambulance." 49Later she confirmed that she rang Dr Marcus at around 1.30 am to see if she should ring for an ambulance. 50The Tribunal gave as its further reasons for rejecting the plaintiff's evidence as to the extent of blood loss in the morning of 15 July that the plaintiff had considered the blood loss to be sufficiently significant to have called the general practitioner at about 1.30am. The Tribunal said also that its finding was consistent with the plaintiff's "conclusion that her mother should go to hospital." The Tribunal took the view that despite BM's objection, the plaintiff should have called an ambulance at that time as BM had significant bleeding from an unknown cause and was not capable of making her own decision about her welfare. 51The Tribunal referred to medical evidence that BM suffered an acute cerebral dysfunction and damage resulting from acute blood loss she suffered at the time of her admission to Manly Hospital. If the blood loss occurred in the early hours of the morning as the Tribunal found it did, then its conclusion that the plaintiff had erred in her assessment as to the need for medical intervention would be unimpeachable. The attack on the finding was as to the Tribunal's conclusion that the blood loss occurred in the early hours of the morning rather than in the afternoon as the plaintiff said in her evidence to the Tribunal. But the Tribunal gave entirely adequate reasons for rejecting that part of the plaintiff's evidence. 52The 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; and see the citation of authority in SAS Realty Developments Pty Ltd v Kerr [2013] NSWCA 56 at [104]-[106]). In my view the reasoning of the Tribunal on this issue is clear and adequate. It is not clear to me in what respects the reasoning could be said to be insufficient. 53If the contention is that the Tribunal reached a wrong finding of fact, that would not involve any error of law. Nor having regard to the care with which the Tribunal dealt with the issue would it warrant a grant of leave for the matter to be reconsidered. 54The third alleged error of law concerns the finding of the plaintiff's conflict of financial interest. 55The Tribunal referred to allegations of misappropriation of BM's assets by the plaintiff and noted that these allegations had been referred to the New South Wales Trustee and Guardian's legal services section for investigation. It was concerned as to alleged misappropriations of BM's assets that led the Tribunal to appoint the NSW Trustee as BM's financial manager on 28 November 2011. 56The Tribunal said: "The Tribunal considers the existence of a conflict of financial interest a relevant consideration in deciding whether there is a need for a guardianship order." 57It then dealt with the submission of counsel that no such conflict existed until the NSW Trustee decided to take action as a result of its investigation. It rejected that submission as it found that the allegations were of sufficient concern to warrant an ongoing investigation. That part of the Tribunal's reasons is not challenged. 58It then dealt with the submission of counsel for the plaintiff that it was and remained the plaintiff's position that once the NSW Trustee had exhausted all other financial possibilities, if there were insufficient funds to secure BM's accommodation at Lansdowne Gardens then the plaintiff would pay whatever was required. The Tribunal said that this did not detract from its finding that a conflict of financial interest exists and concluded: "There is a clear conflict of financial interest between the person appointed under the Enduring guardianship instrument and [BM] and the Tribunal's view is, in the circumstances of this case there is a need for a guardianship order." 59Counsel said that this was to apply the wrong test and that before the Tribunal could find a guardianship order was required by reason of a conflict of financial interest, it would have to find that the conflict was "undue". This alleged standard or threshold is said to be based upon s 17 of the Act. It relevantly provides: "17 Guardians (1) A person shall not be appointed as the guardian of a person under guardianship unless the Tribunal is satisfied that: ... (b) there is no undue conflict between the interests (particularly, the financial interests) of the proposed guardian and those of the person under guardianship, ..." 60I do not accept that submission. Section 17(1)(b) precludes the Tribunal from appointing a person as guardian unless it is satisfied that no undue conflict of interests between the proposed guardian and the affected person exists. 61I accept that it follows that the Tribunal is not precluded from appointing a person as guardian if it considers that, although a conflict exists, the conflict is not "undue". But the question of whether the Tribunal is precluded from appointing a person as guardian is not the same as the question whether the Tribunal considers that a guardianship order should be made. 62In 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. 63There is no inconsistency between the course the Tribunal took and the requirements of s 17. 64Nor do I accept the submission that the plaintiff's offer to fund the bond required for BM's accommodation in Lansdowne Gardens removed the issue of a conflict of financial interest as having any relevance to the making of a guardianship order. 65The Tribunal found that the allegations of financial misappropriation were not vexatious and were of sufficient concern to warrant an ongoing investigation. It referred to the reasons for decision of the Tribunal of 28 November 2011, in which the Tribunal, in dealing with the application for the financial management order, dealt with shareholdings of BM. In its reasons of 28 November 2011 the Tribunal referred to the transfer of shares from BM to the plaintiff and stated that it had not been given a full list of either the plaintiff's shareholdings or BM's shareholdings and could not therefore determine the value of the shares transferred. It said that it was not in dispute that the share transfers amounted to a significant proportion of BM's shareholdings. It recorded that in response to a question about what assets BM currently owned, the plaintiff had replied that she did not really know, but thought that her mother might have about $1 million worth of shares. The Tribunal then recorded: "The Tribunal asked [the plaintiff] whether any shares had been transferred since July 2011 and she replied that they had not." 66In its reasons of 25 July 2012 the Tribunal referred to a report by the NSW Trustee that a substantial number of listed shares had been transferred to the plaintiff from BM on 21 November 2011. The Tribunal said that the NSW trustee had sought an explanation from the plaintiff's lawyers who informed it that the shares had not been transferred, but that the plaintiff had changed the reference numbers on the shares to "secure" them. 67It appeared that the plaintiff gave evidence to the Tribunal to the effect that she took this step because she considered that her sisters had removed financial records. The Tribunal did not make any findings as to whether the plaintiff had improperly dealt with BM's assets, but it said that the conflict of financial interest arising from the allegations of misappropriation, were such as supported the need for a guardianship order. I do not think that this was an error in deciding whether it was appropriate and in BM's interests that the plaintiff continue as BM's guardian. The Tribunal was entitled to take into account the question as to whether there were reasons for concern as to not only the competence of the plaintiff in looking after BM's interests, but also her character. 68For these reasons I do not consider that any of the alleged errors of law have been established. Nor would the matters raised for the plaintiff justify the grant of leave. Indeed, I see no error in the Tribunal's reasoning. 69However, 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. Had I accepted the plaintiff's submissions as to error, I would have had to then consider what, if any, order was appropriate to be made in accordance with s 67(3). As the Tribunal's orders would in any event be justified by the part of the reasoning which was not challenged, it would not have been appropriate to set aside those orders, even had the grounds for challenge been established. 70For these reasons I order that the amended summons be dismissed. I will hear the parties on costs. [Parties addressed on costs.] 71I order that the plaintiff pay the defendants' costs. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 March 2013
SAB
SEM & Ors
[2011] VSC 37
[2006] QSC 39
(1988) 82 ALR 175
(2008) 74 NSWLR 481
(1991) 21 NSWLR 725
Amended summons dismissed. Plaintiff pay the defendants' costs.