XC v Protective Commissioner and Ors [2002] NSWCA 83 | Case summary

REASONS FOR DECISION Introduction 1 Background to appeal. This is an appeal from a decision of the Guardianship Tribunal making a financial management order in relation to XC and appointing the Protective Commissioner as his manager. XC's main grounds of appeal are challenges to the Guardianship Tribunal's jurisdiction to make the financial management order. First, XC says that when the application for a financial management order was made to the Guardianship Tribunal, another financial management order was in force and that deprived the Guardianship Tribunal of jurisdiction. Alternatively, XC says that even if there was no other financial management in force at the relevant time, the Guardianship Tribunal still had no jurisdiction to make a financial management order in relation to him because he was a "patient" under the Mental Health Act 1990 (Mental Health Act) at the time. According to XC the provisions of the Protected Estate Act 1983 (Protected Estates Act) allowing Magistrates, the Mental Health Review Tribunal (MHRT) and the Supreme Court to make financial management orders, "covers the field" in relation to the making of financial management orders for patients. Consequently, the Guardianship Tribunal has no jurisdiction to make financial management orders in relation to such people. Finally, XC says that if the Guardianship Tribunal did have jurisdiction to make the financial management order, it made several legal errors in the process of reaching its decision. 2 XC's circumstances. XC is a 47 year old man who, as a result of a head injury in 1986, is paralysed on the left side of his body, is blind in his left eye and has a mental illness. He was injured again following a forcible eviction from his Department of Housing accommodation in February 2005. He went to hospital and, because of his mental illness, was transferred to Rozelle Hospital where he was admitted as a voluntary patient. 3 Magistrate's orders. On 13 May 2005, following XC's return to hospital after a short absence, Magistrate Schreiner made a temporary patient order under the Mental Health Act, s 51 until no later than until 10 June 2005. At the same time, the Magistrate was obliged to consider XC's capacity to manage his financial affairs: Protected Estates Act, s 16. The Magistrate found that XC was not capable of managing his affairs and made a financial management order appointing the Protective Commissioner as his financial manager for six months: Protected Estates Act, s 20 and s 23. There is doubt about whether that order was validly made. If it was valid, it expired on 12 November 2005. 4 Application to MHRT. On 7 June 2005, a few days before the expiry of the temporary patient order, XC was brought before the MHRT pursuant to s 56 of the Mental Health Act. The MHRT decided that XC should be detained in hospital for further observation or treatment for three months concluding on 7 September 2005. On 6 September XC was again brought before the MHRT when he was classified as a "continued treatment patient" and detained in hospital for further observation and treatment. On 8 November 2005, just before the six month financial management order made by the Magistrate was due to expire, the MHRT considered an application by Ms Worne, a social worker at Rozelle Hospital, for a further financial management order pursuant to s 19 of the Protected Estates Act. The MHRT adjourned the proceedings until a date to be fixed pending the provision of further documentation. On 24 November 2006, Ms Worne wrote to the MHRT advising that she did not wish to proceed with the application. While we have no evidence of any reply to that correspondence, it is apparent that Ms Worne withdrew the application to the MHRT. 5 Application to Guardianship Tribunal. Meanwhile, on 18 July 2005, Ms Worne had applied to the Guardianship Tribunal for a financial management order and a guardianship order in relation to XC. Because s 25K(2) of the Guardianship Act 1987 (Guardianship Act) states that the Guardianship Tribunal does not have jurisdiction to make a financial management order if an order under the Protected Estates Act or the Mental Health Act is in force in respect of any part of the person's estate, the Guardianship Tribunal adjourned the hearing of that application until 14 November 2005. By that time, Ms Worne had withdrawn her application to the MHRT for a financial management order. Although the original financial management order had expired by 14 November 2005, the Guardianship Tribunal adjourned the proceedings for a further three months to allow XC to obtain legal representation. 6 Guardianship Tribunal's decision. On 20 March 2006, the adjourned application for financial management came before the Guardianship Tribunal. XC was still a "patient" in Rozelle Hospital at the time. On that date, the Guardianship Tribunal ordered that XC's estate be subject to management under the provisions of the Protected Estates Act and that the management of the estate be committed to the Protective Commissioner. It is that decision that is the subject of this appeal. 7 Appeal Panel's jurisdiction. The Appeal Panel's jurisdiction to hear external appeals comes from s 67 A of the Guardianship Act and s 118A of the Administrative Decisions Tribunal Act 1997 (ADT Act). An external appeal may be made as of right on any question of law or by leave on any other ground: ADT Act, s 118B(I). XC appealed on questions of law and also sought leave to appeal against the merits of the Guardianship Tribunal's decision. 8 Late application. Although XC received the Guardianship Tribunal's reasons for decision in late March 2006, he did not appeal until 15 May 2006. On 2 June 2006 the Appeal Panel exercised its discretion to accept the appeal even though it was lodged more than 28 days after the Guardianship Tribunal provided XC with its written reasons: ADT Act, s 118B(2). 9 Parties and representation. XC was legally represented at the hearing. Neither Ms Worne, the applicant in the Guardianship Tribunal proceedings, nor the Protective Commissioner, wished to be present or make submissions. The Guardianship Tribunal said that it wished to have an active role in the appeal, but only to the extent of being available to make submissions in relation to the Guardianship Tribunal's practices and procedures. That is consistent with the principles outlined by the High Court in R v Australian Broadcasting Tribunal,' ex parte Hardiman (1980) 144 CLR 13 at 35. Ms Cho appeared for the Guardianship Tribunal. The Tribunal appointed the Crown Solicitor to assist the Tribunal: Administrative Decisions Tribunal Rules (Transitional) Regulation 1998, Schedule 1, CI 42A(2). Ms Morris appeared on behalf of the Crown Solicitor. Issues 10 There are four main issues for determination: (a) did the Guardianship Tribunal have jurisdiction to make the financial management order despite s 25K(2) of the Guardianship Act ? (b) if so, did the Guardianship Tribunal have jurisdiction to make a financial management order even though XC was a "patient" under the Mental Health Act when the order was made? (c) if so, did the Guardianship Tribunal make an error of law in the process of deciding to make a financial management order in relation to XC? (d) in any event, should the Appeal Panel give leave to XC to appeal on grounds other than a question of law? JURISDICTION -OPERATION OF s 25K(2) Introduction 11 XC's submission. XC submitted that the Guardianship Tribunal did not have jurisdiction to make a financial management order on 20 March 2006 because of the operation of s 25K(2) of the Guardianship Act which states that: The Tribunal does not have jurisdiction to make any financial management order (including an interim financial management order) in respect of a person if an order made under the Protected Estates Act 1983 or the Mental Health Act 1990 is in force in respect of any part of the person's estate. 12 Issues . The three issues that arose in relation to this ground of appeal are: (a) whether the Magistrate's interim financial management order was valid; (b) what is meant by the words 'make any financial management order'? (c) whether the order made by the Magistrate was "in force at the relevant time?" Was the Magistrate's interim order valid? 13 Previous decisions. This Tribunal has recently decided that neither a Magistrate nor the MHRT is entitled to make an interim order for a fixed period as distinct from an interim order "pending further consideration of the patient's capability to manage his or her affairs." In VU v Miles [2006] NSW ADT AP 19 and WP v Protective Commissioner [2006] NSW ADTAP 37 the Appeal Panel set aside a decision of the MHRT and a Magistrate respectively because neither had power to make an interim order for a fixed term without any directions for the further consideration of the patient's capability to manage his or her own affairs. 14 XC's submission. XC submitted that the Magistrate made an order which on its face appears to be within power and appears to have been made in a bona fide attempt to exercise the jurisdiction conferred on her: R v Hickman (1945) 70 CLR 508. XC further submitted that WP v Protective Commissioner was wrongly decided because the power of a Magistrate to make an interim financial management order is different from the power of the MHRT to do so. According to XC, a Magistrate usually has occasion to consider making an order under the Protected Estates Act only once in the course of a patient's admission to hospital pursuant to s 16 of the Mental Health Act following the making of a temporary patient order. XC said it would be unwieldy if the Magistrate continued to exercise jurisdiction under the Protected Estates Act where he or she had no further role to play. XC's conclusion is that the words "pending further consideration" in s 20(1) can only be a reference to further consideration by the MHRT pursuant to s 18 or s 19 of the Protected Estates Act and not to further consideration by the Magistrate. 15 Reasoning and conclusion. Unwieldy or not, when making an interim order for financial management, the Magistrate must make the order "pending further consideration of the patient's capability". It is not necessary for us to decide whether the matter must be re-listed before a Magistrate or the MHRT. In our view, WP v Protective Commissioner was correctly decided and the Magistrate in this case made the same error as the Magistrate in that case. As the decision to make an order for a fixed period rather than pending further consideration, was made without power, it is a nullity. Consequently there was no order "in force" in respect of XC's estate when the Guardianship Tribunal received the application, nor when it determined that application. Consequently s 25K(2) did not deprive the Guardianship Tribunal of jurisdiction. In case this conclusion is not correct, and the interim order was validly made, we go on to consider the other issues that would arise in relation to s 25K(2). What is meant by the words "make any financial management order" in s 25K(2)? 16 Introduction. When the application came before the Guardianship Tribunal on 29 August 2005, the Tribunal accepted that there was an interim financial management order in place committing XC's financial affairs to the Protective Commissioner until 13 November 2005. The Tribunal went onto quote s 25K(2) and concluded that: Because of the provision, the Tribunal did not have jurisdiction to make the financial management order sought by Ms Worne. As a result the Tribunal adjourned the hearing of the application for a financial management order to a date to be fixed after 13 November 2005, when the existing order will expire. 17 XC's submission. XC submitted that the fact the Magistrate's order had expired by the time the Guardianship Tribunal made the financial management order was irrelevant. He said that if a decision-maker does not have jurisdiction at the outset, it cannot adjourn the proceedings until such time as the jurisdictional defect may be cured. 18 Cases where a court had no jurisdiction. In Brown v Petrie (1997) 7 Tas R 216, the defendant came before a magistrate on 9 July 1996 and pleaded guilty to a complaint alleging two breaches of the Fisheries Rules 1996 (Tas). Those rules were made pursuant to an Act which had not commenced. The applicant requested a two month adjournment of the hearing of the complaint until after legislation retrospectively validating the rules commenced. The magistrate refused to adjourn the hearing of the complaint and dismissed it. Underwood J dismissed a motion to review the magistrate's decision holding that, when the respondent appeared before the magistrate, "the complaint disclosed no offence known to law and therefore the learned magistrate had no jurisdiction to deal with that complaint" (at p 221). His Honour held that the magistrate "was right to refuse the application [for an adjournment] as he was incurably without jurisdiction and [t]here was nothing for the learned magistrate to hear and determine". (at p 226.) Similar reasoning was applied in Brown v Petrie (No2) (unreported), TASSC, Underwood J, 18 November 1998. 19 Reasoning and conclusion. These cases can be distinguished from the present case because the words of s 25K(2) are specific. They prevent the Guardianship Tribunal from making a financial management order if another financial management order is already in force. The words "to make any financial management order" in s 25K(2) should be given their ordinary meaning unless the context suggests otherwise or unless that interpretation would lead to an absurd result. The ordinary meaning is that the Guardianship Tribunal is prevented from making a financial management order when one is already in force. Section 25K(2) does not prevent that Tribunal from making procedural directions in relation to an application for financial management or from hearing the application. Had the legislature intended otherwise, it would have said so. (See, for example Consumer, Trader and Tenancy Tribunal Act 2001, s 22(7).) 20 Consequently, s 25K(2) merely prevents the Guardianship Tribunal from making a financial management order if another order is in force at the time, it does not prevent it from listing the matter for hearing or adjourning the matter. Was the order made by the Magistrate "in force" at the relevant time? 21 Introduction. The answer to this question is 'no'. Magistrate Schreiner purported to make an "interim" financial management order in relation to XC for a period of six months. The order was made under s 20 of the Protected Estates Act: (1) A Magistrate or the MHRT may, if it appears to the Magistrate or MHR T necessary or convenient to do so, make an interim order under this Division for a specified period in respect of a patient pending further consideration of the patient's capability to manage his or her affairs. (IA) (Repealed) (2) Where another order under this Division is not made before the period for which an interim order made expires, the interim order shall be deemed to be revoked on the expiration of that period. (Emphasis added.) 22 There was no dispute that if the "interim" financial management order was valid, it expired on 12 November 2005 and no further order was made. The effect of the expiration of the interim order was that the order was revoked: Protected Estates Act , s 20(2). Even if the Magistrate's order was in force when the application to the Guardianship Tribunal was made, it was not in force by the time the Tribunal made its order. Consequently, s 25K(2) did not apply and the Tribunal was not prevented by that provision from making the order. JURISDICTION -DOES PROTECTED ESTATES ACT COVER THE FIELD RE PATIENTS? Submissions 23 XC's alternative and broader submission in relation to jurisdiction was that the Guardianship Tribunal has no jurisdiction to make a financial management order in relation to a "patient" because the provisions of the Protected Estate Act "cover the field" in relation to patients." A "patient" is a person who has been admitted to a hospital in accordance with the Mental Health Act and who is in the hospital following the person's admission: Mental Health Act, Schedule 1, s 3; Protected Estates Act, s 4. XC was a patient at the time the Guardianship Tribunal made the financial management order. Section 25E(1) contains a general power to ". ..order that the estate of a person be subject to management under the Protected Estates Act 1983." XC submitted that while this section allows the Guardianship Tribunal to make financial management orders in relation to a "person", a "person" does not include a "patient". We understand XC to argue that the general power given to the Guardianship Tribunal cannot be exercised to do that which Magistrates and the MHRT are empowered to do under the more specific provisions in the Protected Estates Act. Approach to statutory construction 24 When interpreting the provisions in Part 3A of the Guardianship Act, which includes s 25E, "a construction that would promote the purpose or object underlying the Act or statutory rule shall be preferred to a construction that would not promote that purpose or object": Interpretation Act 1987, s 33. We must endeavour to ascertain the legislative intention by reference to the language used and its context. Looking first at the language of s 25E of the Guardianship Act, there is a presumption that the general word "person" should be given its ordinary meaning unless the context suggests otherwise or unless that interpretation would lead to an absurd result: Cody v JH Nelson Pry Ltd (1947) 74 CLR 629 per Dixon J at 647; Hall v Jones (1942) 42 SR (NSW) 203. Giving the word "person" in s 25E(1) its-plain and ordinary meaning, the Guardianship Tribunal may make a financial management order in relation to any "person" whether or not that person is a "patient". The next question is whether the context suggests that the ordinary meaning should not be applied or whether the ordinary meaning would lead to an absurd result. Context - scheme for making financial management orders 25 Legislative history. The Protected Estates Act was enacted in 1983 as part of a package of mental health reforms. These reforms provided for a person who had been detained in hospital to be brought before a Magistrate to determine whether he or she was mentally ill and if so, whether he or she should be discharged or detained in the hospital. If the Magistrate directed that the person be detained as a temporary patient, he or she was also obliged to consider whether or not to make a financial management order in relation to that person. Alternatively, the Magistrate was permitted to refer the question of the person's capability to manage his or her affairs to the MHRT. If an order was made, it applied to the person's entire estate and the Protective Commissioner was required to be appointed as the person's manager. The order continued while the person remained a patient but could subsequently be revoked by the MHRT on the application of the person or on the Protective Commissioner's motion if he was satisfied that the person was capable of managing his affairs: Protected Estates Act, 36 and s 41. Only the Supreme Court has power to revoke a financial management order while the person is still a patient: s 35. 26 Meaning of s 19. Section 19 of the Protected Estates Act dealt with subsequent applications to the MHRT for financial management. Section 19(1) permitted the MHRT to consider a "patient's" capability to manage his or her affairs and "unless satisfied that the patient is capable of managing his or her affairs" to order that the patient's estate be subject to management under the Protected Estates Act. In 1987, s 19 was amended to give the Guardianship Tribunal (then known as the Guardianship Board) power to make financial management orders in relation to a "person" under guardianship: Protected Estates (Disability Services and Guardianship) Amendment Act 1987. Section 19(3) stated that: The Board may, on the application of any person having, in the opinion of the Board, a sufficient interest in the matter and whether or not it has previously considered the question, consider the capability of a person under guardianship to manage his or her affairs and, if satisfied that the person is not capable of managing his or her affairs, may order that the person's estate be subject to management under this Act. (Emphasis added.) 27 The Guardianship Amendment Act 1997 deleted various provisions from the Protected Estates Act including s 19(3) and inserted Part 3A into the Guardianship Act . That Part expanded and re-located the powers of the Guardianship Tribunal in relation to the making of financial management orders. Part 3A of the Guardianship Act now gives the Guardianship Tribunal power to make financial management orders whether or not the person is under guardianship. Section 25G lists the matters about which the Guardianship Tribunal must be satisfied before making a financial management order: The Tribunal may make a financial management order in respect of a person only if the Tribunal has considered the person's capability to manage his or her own affairs and is satisfied that: (a) the person is not capable of managing those affairs, and (b) there is a need for another person to manage those affairs on the person's behalf, and (c) it is in the person's best interests that the order be made. (Emphasis added.) 28 XC made several submissions about the context in which s 25G appears in support of his submission that the ordinary meaning of the word "person" in that provision should not be applied. In summary these submissions related to: (a) the meaning of the reference to the 'Mental Health Act 1990' in s 25K(2); (b) the difference in onus of proof between the provisions in the Protected Estates Act and the Guardianship Act; (c) the fact that the Guardianship Tribunal may appoint a "suitable person", not just the Protective Commissioner, to manage the person's affairs; (d) other contextual inconsistencies; and (e) the absence of any express conferral of jurisdiction on the Guardianship Tribunal. Reference to Mental Health Act in s 25K(2) 29 XC's submission. Although s 25K(2) refers to orders made under the Mental Health Act in force in respect of any part of the person's estate, there are no provisions in the Mental Health Act which allow financial management orders to be made. In those circumstances, XC submitted that if the reference to the Mental Health Act is to be given any meaning, s 25K(2) should be read as follows: The Tribunal does not have jurisdiction to make any financial management order (including an interim financial management order) in respect of a person if: (a) an order made under the Mental Health Act 1990 is in force in respect of the person; or (b) an order made under the Protected Estates Act 1983 is in force in respect of any part of the person's estate. 30 In other words, if an order such as a temporary patient order or a continued treatment order is in force under the Mental Health Act , XC says that the Guardianship Tribunal does not have jurisdiction to make a financial management order in respect of that person. 31 Other explanations for inclusion of Mental Health Act. Ms Morris, representing the Crown Solicitor, proffered an explanation for the inclusion of the reference to the Mental Health Act in s 25K(2). Prior to the commencement of the Protected Estates Act on 5 August 1985, financial management orders could be made under the Mental Health Act 1958. The second reading speech for the cognate mental health bills confirms that "the Protected Estates Bill ...deals with and replaces property provisions of the Mental Health Act 1958."(Second reading speech, Mental Health Bill 1983, Protected Estates Bill 1983, Crimes (Mental Disorder) Amendment Bill 1983 and Miscellaneous Acts (Mental Health) Repeal and Amendment Bill 1983, Hansard, Legislative Council, 30 November 1983, the Ron Landa, p 3976.) Schedule 3 of the Miscellaneous Acts (Mental Health) Repeal and Amendment Act 1983 contained savings and transitional provisions with respect to protected estates orders made under the Mental Health Act 1958. Similar provisions appear in Part 3 of Schedule 7 to the current Mental Health Act. Ms Morris said that it may be that the reference to "orders made under the Mental Health Act" was intended to be a reference to any estate orders made under the Mental Health Act 1958 which are still in effect. 32 Reasoning and conclusion. The general rule is that all words must be given some meaning and effect. If it is not possible to do so, the words should be given the construction "that produces the greatest harmony and the least inconsistency": Australian Alliance Assurance Co Ltd v Attorney-General (Qld) [1916] ST R Qd 135 at 161 per Cooper CJ. One argument which detracts from XC's explanation of the reference to the Mental Health Act is that temporary patient orders and continued treatment orders are not the only kinds of orders that can be made under the Mental Health Act. The MHRT may order that a person be discharged into the care of a friend or relative or be discharged because he or she is not mentally ill: s 51 and s 52. Those kinds of orders are not relevant to the question of whether the Guardianship Tribunal should be able to make a financial management order. In addition, the reference to orders, "in respect of any part of the person's estate" means that the provision relates to financial management orders and not to other kinds of orders which can be made under the Mental Health Act. The only meaning and effect that it is reasonable to give to the reference to the Mental Health Act is that it wrongly refers to financial management orders, made under the Mental Health Act 1958 which are still in effect. We recommend that parliament give consideration to amending this provision. Onus of proof 33 XC highlighted one difference between the powers of the MHRT in s 19(1) and the powers of the Guardianship Board (as it then was) in s 19(3) of the Protected Estates Act as then enacted. Under s 19(1) the MHRT was (and still is) obliged to make an order "unless satisfied that the patient is capable of managing his or her affairs". Section 19(3) gave the Guardianship Board a discretion to make a financial management order "if satisfied that the person is not capable of managing his or her affairs". The wording in the now repealed s 19(3) of the Protected Estates Act was repeated in s 25G(a) of the Guardianship Act. That provision also added two further requirements before making a financial management order, namely that "there is a need for another person to manage those affairs on the person's behalf, and it is in the person's best interests that the order be made." The effect of s 25G is that there is no onus (in relation to an application to the Guardianship Tribunal). Instead, the Guardianship Tribunal has a discretion to make a financial management order "if satisfied that the person is not capable of managing his or her affairs". A similar form of words, "[W]here the Court is satisfied that a person is incapable of managing his or her affairs. .." is used in s 13 of the Protected Estates Act in relation to the Supreme Court's jurisdiction. Appointment of suitable person 34 When a Magistrate or the MHRT makes a financial management order, he or she must commit the management of the estate to the Protective Commissioner. While the restriction on whom a Magistrate or the MHRT may appoint is not express, it is implied from s 22 which gives the Court power to appoint a "suitable person:" 22 Management of estates of persons other than patients The Court may, by order, appoint a suitable person as manager of the estate of a person in respect of whom it has made an order under section 13 or 21C or may, by such an order, commit the management of the estate of any such person to the Protective Commissioner. 35 The absence of any reference to a "suitable person" in relation to appointments by a Magistrate or the MHRT implies that those bodies may only appoint the Protective Commissioner. Like the Court, the Guardianship Tribunal may appoint a "suitable person" to be the manager of a person's estate: Guardianship Act, s 25M. Because the MHRT and Magistrates must appoint the Protective Commissioner, XC says that it could not have been intended that an applicant could circumvent this provision by applying directly to the Guardianship Tribunal for a "suitable person" to be appointed. 36 Heading in s 22. Section 22 of the Protected Estates Act is headed "Management of estates of persons other than patients". XC argues that is another indication that the term "person" in s 25E of the Guardianship Act was not intended to extend to patients. The general rule is that headings are to be used as a reference, not as an aid in determining the meaning of an unambiguous provision. A summary of the law on this point was given by Murray CJ in Ragless v Prospect District Council [1922] SASR 299 at 311. The relevant point in relation to this matter is that, "[I]f the language of the section is clear, but, although more general, is not inconsistent with the headings, the sections must be read subject to the headings." In this case, the word "person" is broad enough to cover "patients" but the heading makes it clear that the provision is not intended to apply to patients. If this section is read subject to the heading then it follows that s 13, which is the provision empowering the Court to make a financial management order, applies only to persons who are not patients. Express conferral of jurisdiction 37 XC submitted that there has been no express conferral of jurisdiction on the Guardianship Tribunal over "patients" in hospital pursuant to the Mental Health Act. In the light of factors including the legislative history and the differences in the onus of proof, XC says that one would have expected that any conferral of jurisdiction over "patients" would have been express. Conclusion 38 There are provisions in the Protected Estates Act which suggest that the word "person" in s 25E and s 25G, does not include "patients". However, in s 25K(2) the legislature expressly addressed the question of the relationship between the making of financial management orders under the Guardianship Act and the making of financial management orders under other legislation. The way the legislature addressed that issue was to say that the Guardianship Tribunal could only make a financial management order if another financial management order was not in force in relation to that person. In this way, the legislature ensured that only one financial management order would be in force in relation to a person at any one time. The legislature could have expressly prevented the Guardianship Tribunal from making financial management orders in relation to any person who was a "patient" under the Mental Health Act. It did not do so. That situation is in contrast to the situation in relation to guardianship orders. In s 3C of the Guardianship Act the legislature expressly provided that "A guardianship order may be made in respect of a patient within the meaning of the Mental Health Act 1990." If the legislature had intended to prevent the Guardianship Tribunal from making financial management orders in relation to "patients" it would have legislated to the opposite effect in relation to financial management orders. None of the contextual indications in the Protected Estates Act, either by themselves or in combination, persuade us that the legislature intended to restrict the word "person" to persons who are not patients. Does the ordinary meaning lead to an absurd result? 39 The second question is whether applying the ordinary meaning to the word "person" in s 25E and s 25G leads to an absurd result. The result of giving that word its ordinary meaning is that an application for a financial management order may be made to the Guardianship Tribunal in relation to a patient in certain circumstances. The circumstances in which such an application could be made are: (a) where a Magistrate or the MHRT declines to make a financial management order either when the matter is first considered or subsequently; (b) where an interim financial management order has automatically been revoked upon expiry because another order has not been made; or (c) where the Court revokes an final order made by a Magistrate or the MHRT but the person remains a patient. 40 No order . If a Magistrate or the MHRT is satisfied that the person is capable of managing his or her affairs no financial management order is made. The MHRT may nevertheless hear and determine a subsequent application for a financial management order in relation to a patient: s 19. If the word "person" in s 25E and s 25G is read to include patient, an application could also be made to the Guardianship Tribunal for such an order. XC says this would result in "forum shopping". He says the MHRT is the Tribunal with expertise in mental health issues and it is that Tribunal alone which has jurisdiction to determine whether a "patient's" estate should be subject to management under the Protected Estates Act . 41 Reasoning and conclusion. We do not consider the possibility of an application being made to the Guardianship Tribunal where a Magistrate or the MHRT has declined to make an order, to be an absurd result. Such an application will be subject to the doctrines of issue estoppel and res judicata. The doctrine of res judicata or cause of action estoppel is that "if a dispute is judged by a court of competent jurisdiction, the judgement of the court is final and conclusive as to the rights and duties of the parties involved." (Butterworths, Concise Australian Legal Dictionary, 2nd edition, Butterworths, 1998.) The aim is to ensure finality and non-duplication of litigation. A related principle is issue estoppel. The most authoritative statement of that principle is in Blair v Curran (1939) 62 CLR 464, per Dixon J, at 531-2: A judicial determination directly involving an issue of fact or of law disposes once and for all of the issue, so that it cannot afterwards be raised between the same parties... The estoppel covers only those matters which the prior judgment...necessarily established as the legal foundation or justification of its conclusion, . . . Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. 42 It is arguable that if a Magistrate or the MHRT has made a finding of fact pursuant to s 16 or s 17, that the patient is capable of managing his or her affairs, then the Guardianship Tribunal would be estopped from making a finding to the contrary under s 25G(a) of the Guardianship Act unless there had been a change in circumstances. However, if the principles of res judicata or issue estoppel do not apply because, for example, the circumstances have changed, the Guardianship Tribunal could hear an application for a financial management order. 43 Revocation of interim order. The second circumstance in which an application in relation to a patient could be made to the Guardianship Tribunal is where an interim order has expired without further consideration being given to the patient's capability to manage his or her affairs. If an interim order is made and another order is not made before that order expires, the interim order is deemed. to be revoked on that date: s 20(2). In the present case we decided that the interim order was not "in force" because it was made without power not because it had expired. Nevertheless, for the purposes of the present discussion we have assumed that a Magistrate or the MHRT has made a valid interim order for a specified period and that despite the matter being listed for further consideration, it has not been considered before the expiry date. In that case, a person with a "sufficient interest" in the matter may apply to the MHRT for a "subsequent" order: s 19. While the MHRT is arguably the more appropriate forum for a subsequent application to be made, if an application were made to the Guardianship Tribunal, no res judicata or issue estoppel point would arise because the question of the patient's capability to manage his or her financial affairs will not have finally been determined. 44 Revocation of final order. The third situation is the rare case where the Court revokes a final order made by a Magistrate or the MHRT and a person with standing to do so applies to Guardianship Tribunal for a financial management order. While the Guardianship Tribunal would, in theory, have jurisdiction to determine a further application for financial management, the principles of res judicata or issue estoppel may prevent it from doing so. 45 Conclusion. Our conclusion is that while giving the word "person" its ordinary meaning in s 25E and s 25G of the Guardianship Act leads to results that may not always be appropriate or desirable, those results are not absurd. DID THE GUARDIANSHIP TRIBUNAL MAKE AN ERROR OF LAW? Dismissal as vexatious 46 XC's submissions. XC submitted that it was vexatious for the Guardianship Tribunal to proceed to hear and determine the application in circumstances where he was also the subject of an application for a protected estates order made to the MHRT. According to XC, there was no indication in any of the material before the Guardianship Tribunal that the MHRT had disposed of the application made to it on 8 November 2005. On that day the MHRT adjourned the application pending the provision of further information. In those circumstances, XC says that the Guardianship Tribunal should have stayed or dismissed the application before it, at least until such time as the status of the proceedings before the MHRT had been determined. XC should not have been troubled with successive or concurrent applications to different Tribunals concerning the management of his financial affairs. 47 Reasoning and conclusion. Under s 65 of the Guardianship Act, the Guardianship Tribunal has a discretion to dismiss proceedings if it is satisfied that the proceedings are frivolous or vexatious. Although the Guardianship Tribunal did not have any evidence that the application before the MHRT had been dismissed, it was satisfied on the basis of both written and oral evidence, that the application was not proceeding. Rather than pointing to any legal error, XC appears to be challenging the merits of the Guardianship Tribunal's decision not to dismiss the application. We deal with the issue of whether the appeal should be extended to the merits of the Guardianship Tribunal's decision at [62] below. Improper use of power to adjourn proceedings 48 XC's submissions. XC submitted that the adjournment of the proceedings until it had jurisdiction to make a financial management order, was an improper use of the adjournment power. Under s 64 of the Guardianship Act, the Guardianship Tribunal "may from time to time adjourn its proceedings to such times, dates and places, and for such reasons, as it thinks fit." According to XC, notwithstanding the breadth of the expression "such reasons as it sees fit", the purpose of an adjournment is primarily procedural. He says that even if an adjournment can be made for non-procedural reasons, the power in s 64 is not wide enough to allow it to adjourn proceedings as a device to confer upon itself a jurisdiction that it does not otherwise have at the time the matters was first before it. 49 No jurisdiction over adjournment decision. There are two responses to this ground of appeal which make it unnecessary to consider its substance. The first is that the appeal under consideration is from the decision of the Guardianship Tribunal made on 20 March 2006, not from the adjournment decision made on 29 August 2005. Secondly, a decision to adjourn or not to adjourn proceedings is not a "decision" against which a person may appeal to the Appeal Panel: Guardianship Act, s 67A. For those reasons, this ground of appeal must fail. 50 Alternative conclusion. In any case, even if XC is entitled to appeal against the Guardianship Tribunal's decision to adjourn the proceedings, we have decided that when the Guardianship Tribunal made the financial management order it had jurisdiction to do so either because the Magistrate's order was a nullity or because no other financial management order was "in force" at that time. In those circumstances, it was appropriate for the Tribunal to adjourn the proceedings until such time as it had power to make an order. Wrong test, irrelevant considerations inadequate reasons etc 51 XC's submissions. XC submitted that in determining that he was not capable of managing his affairs, the Guardianship Tribunal applied the wrong test, took into account irrelevant considerations, incorrectly applied the onus of proof, gave inadequate reasons and made findings that were against the evidence or against the weight of the evidence. 52 Wrong test. XC submitted that the Guardianship Tribunal failed to apply the statutory test set out in s 25G. The Tribunal set out the test correctly, indicating that it had to be satisfied, among other things, that XC is not capable of managing his affairs. XC's submission appears to be based on the fact that the Guardianship Tribunal did not apply that part of the test correctly and ignored the principles enunciated by Powell J in PY v RJS [1982] 2 NSWLR 700. The relevant passage is as follows: It is my view that a person is not shown to be incapable of managing his or her own affairs unless, at the least, it appears: (a) that he or she appears incapable of dealing, in a reasonably competent fashion, with the ordinary routine affairs of man; and (b) that, by reason of that lack of competence there is shown to be a real risk that either: (i) he or she may be disadvantaged in the conduct of such affairs; or (ii) that such moneys or property which he or she may possess may be dissipated or lost; it is not sufficient, in my view, merely to demonstrate that the person lacks the high level of ability needed to deal with complicated transactions or that he or she does not deal with even simple or routine transactions in the most efficient manner. .."(footnotes deleted.) 53 Ms Morris pointed out that while these principles are applicable to applications for financial management under the Guardianship Act , they are not a substitute for the statutory test and are not exhaustive: Re GHI [2005] NSWSC 581 per Campbell J at 592. The Tribunal did not err by failing to refer to or apply these principles. The Tribunal correctly applied the statutory test to the facts as found. 54 Irrelevant considerations. The Tribunal took into account a letter from the Department of Housing setting out their requirements before any further housing would be offered to XC. In relation to that letter, the Guardianship Tribunal said: Very clearly there is a need for a very careful and consistent management of [XC's] finances if he is to fulfil these requirements so that his desire for independent supported accommodation can be achieved. 55 XC submitted that the requirements of the Department of Housing could not be a relevant consideration even if accommodation was on offer. We do not agree with that submission. One of the matters the Guardianship Tribunal was obliged to take into account pursuant to s 25G(c) was whether it was in XC's best interests that the order be made. In this case XC's access to accommodation was relevant to determining his best interest. It follows that the requirements of any housing provider were also relevant. In Re R [2000] NSWSC 886 at [35], Young J agreed with the decision in Re Mc (1989) 3 VAR 87 that ""best interests" must include the welfare, health and well-being of the person in a wider sense than is suggested by protection from neglect, abuse or exploitation." The Tribunal concluded that it ". ..considered that it is clearly in his best interests that a financial management order be made so that arrangements can be made without further delay to financially support [XC's] accommodation needs and ensure that that financial support is maintained." 56 Onus of proof. Section 25G allows the Tribunal to make a financial management order if it is satisfied of certain matters including that "the person is not capable of managing those affairs". XC submitted that the following passage from the Guardianship Tribunal's reasons for decision demonstrates that the Tribunal incorrectly applied the onus of proof: Whilst Ms Fraser submitted that [XC] has managed his money in the past and understands his income and his limitations and his liability to pay his commitments, the Tribunal was not persuaded either by [XC's] own evidence or other evidence before it that that is so. 57 XC submitted that by using the words "not persuaded" the GT assumed that the onus was on him to satisfy the Tribunal that he was capable of managing his affairs. 58 Reasoning and conclusion. This comment came after the Tribunal had summarised the evidence given by XC and the submissions made by his legal representative. After making this comment, the Tribunal went on to summarise the evidence given by Ms Worne, two psychiatrists, a social worker and an officer from the Office of the Protective Commissioner. The Tribunal's comment was based on all the evidence, not just XC's evidence. The Tribunal's ultimate conclusion was that it "considered on the evidence before it in this matter [that XC] is not capable of managing his affairs. .." While the use of the word "persuaded" earlier in the reasons was not the best choice of words given that there is no onus on the XC, it does not amount to an error of law. To find otherwise would be to risk breaching the well-known principle that reasons are "not to be construed minutely and finely with an eye keenly attuned to the perception of error": Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287. 59 Inadequate reasons. According to XC, saying it was "not persuaded" by the evidence is not an adequate reason for the Guardianship Tribunal's finding that he was not capable of managing his financial affairs. In addition XC submitted that the Guardianship Tribunal made the ultimate findings they needed to make under s 25G, but did not give reasons for accepting or rejecting the evidence or for reaching a particular conclusion. XC referred to Beale v GIO (1997) 48 NSWLR 430 in support of the proposition that a decision maker should refer to the relevant evidence, set out material findings of fact and any conclusions or ultimate findings and provide reasons for making the relevant findings. XC said that in this case it was not clear to what extent, if at all, the Tribunal considered the evidence about how he had managed his financial affairs. He says the Guardianship Tribunal neither accepted nor rejected any of the evidence on that subject. 60 Reasoning and conclusion. The Guardianship Tribunal is obliged to give each party to proceedings "formal written reasons for the decision as soon as practicable after giving the decision": Guardianship Act, s 68(IB). In this case, the Guardianship Tribunal summarised the relevant evidence, but did not make specific findings on each of the factual issues in dispute. Instead the Tribunal identified the relevant law and concluded that it was satisfied that the requirements in s 25G had been met based on all the evidence. It is not necessary to refer to "all the evidence in the case", to resolve "all conflicts of fact" or to describe "every step in a chain or reasoning": Athens v Randwick City Council [2002] NSWCA 83 at [16]. In Beale v GIO Meagher JA made the point at 444 that inadequate reasons do not necessarily amount to an error of law. His Honour added that: Indeed, an appeal court will reserve any intervention to those situation in which it is left with no choice: where no reasons have been given in circumstances where there was an obligation to provide them and in circumstances where a statement of reasons is so inadequate as to constitute a miscarriage of justice. 61 Despite not making specific findings of fact before addressing the ultimate issues, this is not a case where no reasons were given or where the statement of reasons was so inadequate as to constitute a miscarriage of justice. LEAVE TO APPEAL ON OTHER GROUNDS 62 Introduction. XC also sought leave to appeal on grounds other than a question of law. One of those grounds was that the decision was "against the evidence and the weight of the evidence". The ADT Act does not contain any guidance on the relevant matters to be taken into account in determining whether leave should be granted. 63 Relevant principles. The Supreme Court has provided some guidance on this question in the cases of K v K [2000] NSWSC 1052; S v S [2001] NSWSC 146 and Re R [2000] NSWSC 886. Those cases interpreted s 67 of the Guardianship Act which is the equivalent provision to s 67A in relation to appeals from Tribunal decisions to the Supreme Court. In K v K, Young J observed at [10] that "it has never been clearly decided what the circumstances are that should lead the Court to grant leave to appeal under s 67", but went on to make a number of observations on this point: see para [10]-[15). After considering the relationship between the Court and the Tribunal, Young J observed at [15]: It would seem to me that s 67 of the Guardianship Act operates so that broad questions of administration and policy and the applicability of policy to individual cases, even if they are not questions of law, may well be subjects on which the Court will grant leave to appeal. On the other hand, it is very unlikely that the Court will grant leave to appeal when there IS a problem with a fact finding exercise unless there are clear indications that the Tribunal has gone about that fact finding process in such an unorthodox manner or in a way which is likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. 64 In the paragraphs immediately preceding the passage extracted above from K v K [2000) NSWSC 1052 at [12] and [13], Young J made the following observations: I think it is germane when considering whether to give leave to appeal, to work out the basic relationship between the Tribunal and the Court. Up until relatively recently the Supreme Court, with its inherent power inherited from the Lord Chancellor's jurisdiction in England in the 18th century, had unlimited authority to deal with the persons and estates of incapable persons for their own benefit. It was thought proceedings before the Court involved expense which could be avoided and it would be more appropriate for these matters ordinarily to be dealt with by a tribunal which basically consisted of a lawyer with some knowledge of the relevant Acts and of the law of evidence, a doctor, and a person who had practical experience with the problems of people with mental disabilities. The legislature thus under the Guardianship Act committed to the Tribunal most, but not all the same area of jurisdiction that was within the Court's jurisdiction. It preserved the court's jurisdiction under s 31 and other parts of the Act, and gave the Court supervisory and appellant jurisdiction under s 67. As I said in Re R, it is probably inaccurate to assess the Tribunal as being a specialist tribunal, but it is certainly a tribunal to which the legislature has committed the primary working out of the Guardianship Act and whose decisions are to be given great weight. When the Court does review a decision of the Tribunal, it does, as Lord Denning said in Retarded Children 's Aid Society v Day [1978) ICR 437,443, deal with the matter broadly and fairly and does not interfere if the Tribunal members have directed themselves properly and fairly on the facts and have not gone wrong in law. However, a function of the Court is to ensure that guidance on the proper interpretation of the law is given to the Tribunal and the parties appearing before it so that the Tribunal is integrated into the machinery of justice applying the law of incapable persons as administered by the Court. Thus, there will not be inconsistent rulings between tribunals differently constituted, or between the Tribunal and the Court. 65 Conclusion . There is nothing in the Guardianship Tribunal's reasoning or the transcript which raise "broad questions of administration and policy and the applicability of policy to individual cases". Nor are there "clear indications that the Tribunal has gone about that fact finding process in such an unorthodox manner or in a way which is likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed." Accordingly, leave to appeal on the additional grounds raised by XC is refused. ORDERS 1. Leave to appeal on "any other grounds" is refused. 2. The Guardianship Tribunal's decision of 20 March 2006 that the estate of XC be subject to management under the provisions of the Protected Estates Act 1983 and the management of the estate of XC be committed to the Protective Commissioner is affirmed. 3. Appeal dismissed.

XC v Protective Commissioner and Ors

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