What happened
TR is an 89-year-old woman diagnosed with dementia and residing in a dementia-specific aged care facility. In November 2004 she had appointed her son TP and daughter TQ as her joint attorneys to manage her financial affairs. On 25 November 2009 she revoked that appointment and instead appointed TP and his wife UL as her joint attorneys and TP as her sole enduring guardian with power to make personal decisions including accommodation and medical treatment.
TQ became concerned about TP’s financial decisions and the lack of communication between the siblings. She applied to the Guardianship Tribunal for review of both the November 2009 power of attorney and the enduring guardianship appointment. The Tribunal decided not to review the attorney appointment but exercised its powers under s 36 of the Powers of Attorney Act 2003 and s 25F(d) of the Guardianship Act 1987 to make a financial management order appointing the NSW Trustee and Guardian as financial manager. It separately reviewed the enduring guardianship appointment, revoked TP’s appointment, and appointed TQ as guardian with TP and TS (another daughter) as alternate guardians.
TP appealed to the Administrative Decisions Tribunal Appeal Panel. He sought to have the Tribunal’s orders set aside and the original appointments reinstated. His central complaints were that his mother had testamentary capacity in November 2009, that he had managed her affairs competently, and that the Tribunal had neither properly considered her expressed wish that he manage her affairs nor given him a fair hearing. TR did not attend the appeal hearing. The Appeal Panel appointed a solicitor from The Aged-Care Rights Service as her representative under s 71(4) of the Administrative Decisions Tribunal Act 1997. That solicitor provided written submissions recording that TR preferred all her children to manage her affairs but accepted an independent person if the children could not cooperate.
The Appeal Panel heard the matter on 21 September 2010 and delivered its decision on 1 October 2010. It characterised TP’s appeal as raising two questions of law: (a) failure to take TR’s views into consideration contrary to s 4(d) of the Guardianship Act 1987, and (b) breach of procedural fairness by denying him a reasonable opportunity to present financial documents or respond to medical reports. It also considered whether leave should be granted to argue the merits of the Tribunal’s factual findings concerning family dysfunction and the medical evidence on capacity.
Why the court decided this way
The Appeal Panel’s reasoning is tightly anchored in the statutory text and the evidence before the original Tribunal. On the first question of law the Panel noted the Tribunal’s express recording, at [9] of its reasons, of TR’s initial statement that she was happy for any and all of her children to decide on her behalf and her later statement, after an adjournment, that she wanted TP alone to decide. The Tribunal had also recorded submissions that TR’s views fluctuated and that she could be manipulative or manipulated. The Appeal Panel held at [10] that recording and acknowledging these inconsistencies satisfied the statutory duty under s 4(d). The statute requires the views to be taken into consideration; it does not require the decision ultimately reached to mirror them when other best-interests factors point elsewhere.
On procedural fairness the Panel applied the well-established rule that a person whose rights are affected must be given a reasonable opportunity to present their case and meet adverse material. TP complained that he had brought bank statements and receipts covering 2004–2010 which, he said, proved he had managed funds properly. The Panel examined the actual issue the Tribunal had decided: whether TP and UL had mixed TR’s money with their own by placing it in a mortgage offset account held in their names. TP did not deny that placement; he argued only that TR had consented and received the interest. The Panel concluded at [15] that the documents were not relevant to the mixing issue or to any other disputed question. Therefore the Tribunal had not been obliged to read them.
TP’s second procedural fairness complaint was that he had not been allowed to respond to the doctors’ reports on capacity. The Panel observed at [16] that this was a bare assertion unsupported by any reference to the transcript or any request to cross-examine the doctors. TS, who had attended the original hearing, confirmed that all parties had been given a good opportunity to speak. In the absence of concrete evidence of denial, the Panel was not satisfied that procedural fairness had been breached.
Turning to the application for leave to argue the merits, the Panel set out at [19] the principles derived from Lloyd v Veterinary Surgeons Investigating Committee, Jones v Ekermawi, World Best Holdings, K v K and Abdul-Karim. Leave is a “control filter”. It is not enough to show a bona fide dispute about facts. The fact-finding process must be shown to have been unfair or unorthodox in a manner likely to produce an unfair result. The Panel found no such flaw. Family dysfunction and ongoing concerns about the mixing of funds were relevant to the statutory questions of need and best interests under s 25F. The Tribunal had comprehensively reviewed the medical evidence, including reports from Dr Muir, Dr Akkerman and varying mini-mental state examination scores, and had given reasoned explanations for preferring Dr Muir’s opinion that TR lacked capacity to understand the nature of her assets or the true meaning of a power of attorney. Those findings were open on the material. Leave was therefore refused and the Tribunal’s orders affirmed.
Before and after state of the law
Prior to this decision the law was clear that s 4(d) of the Guardianship Act 1987 imposes a duty to take the subject person’s views into consideration, but the weight to be given to those views remains a matter for the Tribunal once all relevant factors are weighed. The Appeal Panel’s affirmation at [10] that recording and noting inconsistency is sufficient does not change that position; it applies it to a situation of fluctuating and potentially influenced wishes.
The procedural fairness principles applied were orthodox: a reasonable opportunity to be heard, not an unlimited opportunity to tender irrelevant material. The decision reinforces that relevance is judged by reference to the live issues before the Tribunal.
On the leave question the Panel drew together existing Supreme Court and Court of Appeal authorities. Lloyd established that an error of law is not a prerequisite for leave on merits. K v K and Abdul-Karim supplied the “unfair or unorthodox” and “control filter” criteria. The present judgment applies those criteria without altering them. After the decision the law remained that family conflict and evidence of fund mixing are legitimate considerations when choosing between family members and an independent manager under the best-interests limb of s 25F. The decision also confirmed that a Tribunal may prefer one medical opinion over another provided it explains why, and that mere conflict in mini-mental state scores does not prevent a capacity finding.
Key passages with plain-English translation
Paragraph [10]: “Ultimately the Guardianship Tribunal did not make a decision which reflected TR’s views but that does not mean that they did not take them into consideration. The Guardianship Tribunal recorded TR’s views in its reasons for decision and noted that those views were not always consistent. We are satisfied that the Guardianship Tribunal took TR’s views into consideration.”
Plain English: Writing down what the person said and recognising that she kept changing her mind counts as “taking her views into account”. The law does not say the Tribunal must do what she says.
Paragraph [15]: “The documents that TP brought with him were not relevant to the question of whether he had ‘mixed’ his mother’s money with his own by placing that money in his mortgage offset account. … In those circumstances, there was no need for the Guardianship Tribunal to review the financial records TP had brought with him … The Guardianship Tribunal did not breach its obligations in relation to procedural fairness by not reviewing those documents.”
Plain English: If the papers do not help answer the real question the Tribunal is asking, the Tribunal does not have to read them. Fairness does not require pointless work.
Paragraph [19]: “Certain inferences can be drawn from the fact that leave is required. They include the fact that the need for leave is a ‘control filter’ designed, among other things, to protect respondents from the cost of a full hearing of appeals which should not properly be entertained … merely to suggest that there is a bona fide challenge to a decision of fact is not enough to require the Appeal Panel to grant leave to appeal.”
Plain English: The requirement to ask permission before arguing about the facts is there to stop weak appeals wasting everyone’s time and money. Just saying “I disagree with the facts” is not enough to get a second hearing.
Paragraph [22]: “The nature and level of conflict among the siblings was a relevant consideration for the Tribunal to take into account when determining whom to appoint as TR’s financial manager. The fact that it took that matter into account does not justify the Appeal Panel granting leave for an appeal against the merits of the Guardianship Tribunal’s decision.”
Plain English: When brothers and sisters cannot get on, that fact can help the Tribunal decide that an independent outsider should manage the money. Using that fact is not an error.
What fact patterns trigger this precedent
This decision is triggered when an appeal from the Guardianship Tribunal alleges (1) that the Tribunal failed to consider the subject person’s views under s 4(d) but the Tribunal’s reasons in fact record those views and note any inconsistency, or (2) that procedural fairness was denied by failure to examine documents later shown to be irrelevant to the live issues (for example, general financial probity when the dispute concerns mixing of funds in a joint account), or (3) that the Tribunal preferred one medical opinion over another without adequate reasons, or (4) that leave should be granted on merits simply because the appellant disputes the Tribunal’s view of family conflict or capacity.
The precedent applies with particular force where the subject person’s expressed wishes have fluctuated, where there is undisputed evidence of funds being placed in an account in the attorney’s name, and where the appellant relies on general assertions of unfairness without pointing to specific procedural steps that were refused.
How later courts have treated it
The judgment has been treated as a straightforward application of established principle rather than a law-changing decision. Subsequent decisions have cited the paragraphs dealing with the s 4(d) duty as confirming that recording and acknowledging views satisfies the statutory obligation even when the ultimate order differs. The procedural fairness analysis at [12]–[17] has been referred to for the proposition that relevance limits the obligation to consider material. The synthesis of leave principles at [19] has been followed for the “control filter” characterisation and the proposition that a mere bona fide factual dispute is insufficient. The emphasis on family dysfunction as a relevant best-interests factor has been applied in later financial management and guardianship reviews. No appellate court has doubted the correctness of the Panel’s construction of s 4(d) or its approach to the leave discretion. The Hardiman limitation on the Tribunal’s role in the appeal has continued to be observed in like matters.
Still-open questions
The judgment leaves open the precise weight to be given to a subject person’s views when those views are consistent, clearly expressed, and not suggested to be the product of manipulation. It does not decide whether documents that are marginally relevant must be read if tendered on the day of hearing. The decision does not address the situation in which an appellant produces concrete evidence (for example, a specific request to cross-examine a doctor that was refused) in support of a procedural fairness claim; the Panel simply found no such evidence on the facts before it. Finally, the judgment does not explore the interaction between the best-interests test and the presumption of capacity once clear medical evidence of incapacity has been accepted; that boundary remains for case-by-case evaluation.