XJ v Guardianship Tribunal [2008] NSWSC 1108 | Case summary

REASONS FOR DECISION 1 On 21 July 2009 the appellant, 'XJ', applied to the Guardianship Tribunal (the Tribunal) for it to review an order made 13 May 2009 in relation to 'XK'. The principal term of the order made 13 May 2009 was: '5. The guardian shall have the following functions in relation to [XK]: a) Health Care To determine what health care and major and minor medical and dental treatment [XK] may receive. b) Services To make decision on her behalf concerning major services to which she should have access. 2 The Tribunal held a hearing on 26 August 2009. On 2 September 2009 it announced its decision confirming the order. On 18 September 2009, it published its reasons for decision. 3 XJ has appealed to the Appeal Panel against the review decision. The right to appeal is conferred by the Guardianship Act 1987 (the Act), s 67A (the Act). The scope of the appeal is set by s 118(1) of the Administrative Decisions Tribunal Act 1997 (the ADT Act): 'as of right, on any question of law, or by leave of the Appeal Panel hearing the appeal, on any other grounds'. 4 XK is now about 52 years of age. She has an intellectual disability and a history of schizophrenia that makes her partially incapable of managing her own affairs. She was first placed under guardianship on 30 January 2001. The order was limited to the 'services' function and was for a period of 12 months. On the occasion of the first review, the order was extended to cover the 'health care' function, and that order has been confirmed and continued at subsequent reviews. 5 XJ and XK are related to each other through marriage. XJ was married to XK's brother, 'B', for 30 years ending in 2005. XK has lived with members of her family for many years i.e. her other brother 'R', their mother 'D', and R's wife. 6 XJ's concern is that the Tribunal orders have not gone far enough. She has pressed since 2005 for the guardianship order to be extended beyond decisions about health care and services; in particular, to cover the functions of accommodation and consent to medical and dental treatment. She appealed the Tribunal review decision of 2006 to the Appeal Panel: XJ v Public Guardian and ors [2006] NSWADTAP 49. 7 On that occasion, the Appeal Panel summarised her position at [20] as follows: She told [the] Tribunal that "it is impossible for [XK] to progress while ever she lives with her abusers" and that her safety was at risk in her current accommodation. The Tribunal concluded that those assertions were not supported by the evidence as a whole and declined to give the guardian an accommodation function. We can detect no error of law on the part of the Tribunal. 8 The 'abuse' allegations have as their background, abuse that XJ has suffered, and XJ's daughter. The Tribunal held a procedural hearing on 8 May 2009 (referred to further below). In the course of its reasons it noted that a victims compensation tribunal found in August 2008 that, on the balance of probabilities, XJ was the victim of domestic violence by her husband, B, between 2002 and 2004, and, further, on the balance of probabilities, her daughter was the primary victim of historical sexual assault (category 3) by separate offenders with the offenders being her grandfather (XK's father, 'G', now deceased) and her father, B. At our hearing, she also stated that there was a finding against 'R', B's brother, in whose home XK now lives, though there is no reference to such a finding in the Tribunal's summary. 9 XJ nominated the following as respondents to the appeal: Guardianship Tribunal, Public Guardian, NSW Trustee, the person the subject of guardianship, XK, XK's brother 'R', and Ms Fraser, the manager of the Citizen Advocacy Western Sydney service. 10 None of the respondents took any role in the proceedings apart from the Guardianship Tribunal, which, as is conventional, made itself available at the hearing to provide comment on its practices and procedures should that be needed by the Appeal Panel. It provided the Appeal Panel with a transcript of the hearing. It declined to furnish any submissions. 11 The NSW Trustee and Guardian filed a notice in reply indicating that it did not wish to present a case or to make submissions. 12 The subject person, XK, filed a short notice in reply (20 January 2010) stating among other things a dislike for the appellant and that she did not want any change in the orders affecting her. Her brother, R, also filed a notice of reply to which was attached a statement. He referred to the numerous prior occasions on which they had been called to account by XJ in proceedings in the Tribunal and the Appeal Panel. He stated that the family had successfully managed XK's care and needs, and was putting in place an arrangement for her accommodation for her entire life. 13 The net result was that the Appeal Panel had no real contradictor, and no one to speak to the interests of the subject person. To assist in overcoming this difficulty, the Appeal Panel appointed as counsel assisting it, Ms Anina Johnson of the Crown Solicitor's Office. Accuracy of Terms of Order under Review 14 In the 2006 decision the Appeal Panel referred to the Tribunal's then reasons for declining to include within the terms of the 'health care' function the power to make decisions in relation to medical or dental treatment. That limitation was not reflected in the Tribunal's order as formally published. It said instead: Health Care: To determine what health care and major and minor medical and dental treatment XK may receive. [emphasis added] 15 The Appeal Panel noted at [34]: 34 The only legal error made by the Tribunal was the inadvertent one of including in the formal orders the function of consenting to medical and dental treatment. It is clear from the reasons for decision that the Tribunal did not intend to give the guardian that function. The discrepancy between the reasons and the orders should be rectified. 16 It corrected the order to state the function of the Public Guardian as follows: Health Care: To determine what health care, apart from major and minor medical and dental treatment, XK may receive. [emphasis added] 17 XJ's case for having the medical and dental treatment consent functions was again rejected at the May 2009 hearing, and in the decision now under appeal. However, on each occasion the formal published order has been in the uncorrected form. The Appeal Panel correction of 2006 has not been picked up. The error was raised as a ground of appeal by XJ. It is in the nature of a clerical slip. 18 To resolve this confusion, we have included in our orders in this case, a second order in effect reiterating the order made in 2006; and asked the Registrar of this Tribunal to draw the matter to the attention of the Registrar at the Guardianship Tribunal. 19 At the hearing on 26 August 2009, XJ also pressed for the Public Guardian to be given the advocacy function, a subject also considered in the 2006 appeal. The Tribunal noted that the Public Guardian had not expressed a view on whether this function was required. It noted that XJ's case was based on her belief that XK was exposed to harm in the family environment. It decided that there was no clear evidence of any such danger, and rejected the request. Financial Management Order 20 The further matter that needs to be mentioned, by way of preliminary, is that since 2001 there has been a separate financial management order applying to XK's estate, with the Protective Commissioner (now known as the NSW Trustee) the appointed manager. Recurrent Findings 21 Consistently repeated in the decisions of the Tribunal are three points: (1) XK has a reasonable level of lucidity. She has consistently expressed the view that she does not want XJ to be involved in her life and affairs. (2) XJ has not had any direct personal contact with XK for over 10 years. (3) XK's carers feel annoyed and threatened by XJ's persistent activity in relation to XK's care arrangements. XJ sees her conduct as necessary and justified. The Appeal Panel said at [2] of the 2006 decision: [2]: 'She is no longer in a relationship with XK's brother and neither he, nor his family, want to have anything to do with her.' 22 In reaching these conclusions the Tribunal has had the benefit of independent evidence from various professionals familiar with XK's case. 23 Findings of these kinds led the Tribunal at a procedural hearing conducted by the Deputy President on 8 May 2009 to declare that XJ was not a person with a 'genuine concern' (see s 25B(d)) for XK's welfare, and therefore she was not entitled to be accorded standing as a party in the Tribunal's proceedings. The ruling did not prevent her from attending the proceedings and participating as a witness, which she did. The Decision under Review 24 After receiving the review application in July 2009, the Tribunal appointed a separate representative for XK, the barrister Mr Douglas Barry. Mr Barry visited the family home and interviewed XK and other family members. Mr Barry learnt that R and D had decided to sell the home and that everyone, including XK would be moving. At the point Mr Barry visited, contracts had been exchanged. He advised the Tribunal that a new hearing was desirable, in relation to the accommodation function. The Tribunal decided therefore to allow the review to proceed and not exercise its power under s 25A to refuse the request. 25 It held its hearing on 26 August 2009. On this occasion, it accorded ZJ party status (reasons p 17, para 4). At the hearing, R gave evidence. He said that finalisation of the sale had been delayed to take account of concerns expressed by the office of the NSW Trustee responsible for the financial management function. It had raised the possibility of XK being granted a life estate. 26 XJ's opinion is that R is not to be trusted, and that he may act in a way in relation to the sale of the house, and the purchase of another house, so as to injure XK's prospective financial resources and financial security. XJ has referred in many of her submissions negatively to the sale of the house by the parents to R in 2004. She has seen this as a device to remove the asset constituted by the house from any possible inheritance by her former husband (against which she and her daughter might be able to make a claim). She also sees it as a device to cut XK out of any inheritance. She sees the latest sale and purchase transactions as further steps in that direction. 27 The Tribunal referred to her concerns, but decided that there was no reason to make any intervention by way of giving the Public Guardian an accommodation function. Grounds of appeal 28 The first part of the appeal sets out the 'question of law' grounds. Of the matters raised in the notice of appeal and XJ's submissions, we have already dealt with the error in the published order, and the question of her status in the case under review. She was accorded party status. Protective Jurisdiction: General Principles 29 The first ground under the 'question of law' heading is a generalised attack on the Tribunal, asserting that '[they] have avoided their responsibilities under the General Principles' in s 4 of the Act. These principles are: 4 General principles It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles: (a) the welfare and interests of such persons should be given paramount consideration, (b) the freedom of decision and freedom of action of such persons should be restricted as little as possible, (c) such persons should be encouraged, as far as possible, to live a normal life in the community, (d) the views of such persons in relation to the exercise of those functions should be taken into consideration, (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, (f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, (g) such persons should be protected from neglect, abuse and exploitation, (h) the community should be encouraged to apply and promote these principles. 30 In our view, it is clear that the reasons for decision paid careful attention to these principles. At hearing, as the reasons record, Mr Barry carefully cross-examined R as to his intentions in relation to any future purchase of a home, its suitability and action to be taken in relation to the giving of a life estate to XK. In deciding not to extend the guardianship order to include an accommodation function, the Tribunal had regard to the principle of least restriction. 31 It explained in its reasons that it was satisfied that XK was happy with her accommodation, and it was the socially usual one of living at home with family members. Consequently there was no need to introduce into this situation the possibly disturbing element of a third party, the Public Guardian, with the decisive role in relation to accommodation. It also considered evidence to the contrary from Ms Fraser, of the service, Citizens Advocacy of Western Sydney. It had been involved with XK since 2002. 32 The Tribunal's reasons, without didactically enumerating factors (a) to (f), clearly in our view had regard to them. XJ's concerns have as their main plank factor (g) - protection 'from neglect, abuse and exploitation'. The Tribunal described much of what she had to say as 'assertions'. Clearly it was not satisfied that there was any probative evidence to support any conclusion on its part that XK was at risk of neglect, abuse and exploitation. 33 The Tribunal, in our view, had regard to the guiding principles. 34 The next ground is that the Tribunal 'made findings of fact without undertaking investigations to determine if there was any evidence to support that finding'. This ground alludes to the investigation practices of the Tribunal. It is usual for the Tribunal to have an investigation report compiled as part of its initial application and regular review cycle. The hearing under notice occurred only three months after the previous regular review hearing. In our view, it was not incumbent on the Tribunal in these circumstances to undertake a further investigation. It relied on the previous decision as to some matters, but notably treated the accommodation issue as one requiring fresh consideration, and had a good deal of evidence before it on that matter. We see no difficulty in the approach it took. Case Management and Procedural Fairness 35 Ground no 3 refers to XJ's exclusion from part of the hearing; and grounds 4 and 5 raise procedural fairness more generally. 36 She claims she was not afforded procedural fairness. We have reviewed the transcript and the reasons given by the Tribunal for excluding XJ during the giving of evidence by R. The ultimate purpose of Tribunal proceedings is to make the decision that is in the best interests of the subject person, having regard to the general principles set out above. Accordingly, the Tribunal will often manage its hearing in a way that is different from the combative, adversarial style typical of the mainstream court system. The Tribunal may deem it necessary to allow people with relevant evidence to give that evidence in a way which protects them from direct questioning by a third person who the witness regards as antagonistic and hostile. Clearly it is desirable that the Tribunal receive evidence and information in as non-contentious an atmosphere as can be achieved. 37 What the Tribunal did on this occasion was to accede to R's wish to give his evidence by telephone without XJ in the room. It excluded her for that period, and then summarised the main points that R made and gave her an opportunity to raise any issues of concern (see pp 35 ff). In our view the presiding member gave a very complete and fair summary. XJ was given an opportunity to raise any questions or concerns she had about the account. In addition, as noted earlier, Mr Barry had closely questioned R. 38 What amounts to a 'fair' hearing will vary with the nature of the matter under consideration. See generally, KA v The Public Guardian and others [2004] NSWADTAP 25 at [9]. That case, and later Appeal Panel decisions such as WH v Public Guardian & Ors [2007] NSWADTAP 8 at [11], TP v TR & Ors [2006] NSWADTAP 12 at [24], Carew v Protective Commissioner & Ors [2005] NSWADTAP 13 at [39], dealt with whether the Tribunal can refer in its reasons to a matter adverse to a person if it has not given the person affected an opportunity to respond. 39 These cases, nor the law on procedural fairness generally, do not go so far as to prescribe the extent of the right a party or participant in proceedings had to engage in formal cross-examination. Cross-examination is one tool for the testing of information and evidence. The Tribunal has a discretion in relation to allowing cross-examination: see Act, s 59. Most importantly, the focal point of the Tribunal's processes must always be the best interests of the subject person. 40 It is clear that XJ holds deeply antagonistic feelings towards her former husband and his brother. The Tribunal will, it seems to us, often find it necessary when faced by tensions of this kind to use some form of intermediary process to ascertain whether there is a sound basis for the antagonism relevant to the best interests of the subject. 41 In this instance a barrister independently tested R's actions in relation to the sale of the house, and the Tribunal listened to that exchange and then fed relevant points back to XJ for her comment. In our view, it dealt with XJ's interests and concerns fairly. Her real grievance is at the end of the day they did not put the same weight on her concerns as she did. 42 Ground no 6 raises the way in which the Tribunal relied on the material before it at the 13 May 2009 hearing. In our view, this ground seeks to engage in a collateral attack on that hearing. XJ was not given party status at that hearing. Only a party can appeal to the Appeal Panel: Act, s 67A. A ruling that a person is not regarded as a party may well be unappealable to the Appeal Panel (we offer no final view on this point), but it could be challenged in the review jurisdiction of the Supreme Court. There was no attempted appeal to the Appeal Panel on the point, and so far as we are aware no application to the Supreme Court. 43 In our view, it is not appropriate for us to entertain ground no 6, for to do so would give rise to a collateral appeal when any right of appeal could and should have been pursued at an earlier time. 44 The same conclusion applies to ground no 7, which challenges the adequacy of the investigation reports considered by the Tribunal on that occasion. As to that matter, we would simply note that investigation reports will often contain private material about other persons. In our view, the Tribunal must be accorded a wide discretion as to how it entertains and uses private material in investigator's reports. It is involved in the oversight of a set of continuing relationships involving family members, carers, friends, professionals and others with an interest in the subject's welfare. 45 It is obvious that it might be highly destructive of future relationships and the future care and best interests of the subject person for sensitive private material to be widely or lightly disclosed. The Tribunal has the flexibility usual in tribunal law of not being strictly bound by the rules of evidence, and being bound to act with as little formality and legal technicality as the case permits: Act, s 55; see also s 56, and s 53. 46 Ground no 8 criticises the presiding member at the hearing of 26 August 2009 in starting late because she had needed time to read the evidence. It is put that she did not thoroughly examine the evidence. There is also a complaint that she should have continued the hearing on another day, so that the Principal Guardian, Mr Halvorsen, could be cross-examined. 47 The Tribunal sat from approximately 2 pm to 5 pm. In our view, there is nothing unusual about the approach the Tribunal took. It examined the many documents that had been filed. It then went into open session and heard orally submissions and evidence. XJ did not, in our view, explain with any clarity what disadvantage resulted to XK from its approach or to her. 48 Ground no 11 is related to the same issue. It is critical of the way the Tribunal managed the input from Mr Halvorsen. The intention had been for Mr Halvorsen to give evidence, but he became unavailable. In its reasons it explained why it did not regard Mr Halvorsen's evidence as material having had regard to the matters which XJ said she wished to put to him. 49 The reasons for decision are thorough and detailed. The Tribunal referred there to the consideration it gave as to whether it should have held a further session on another day. It gave reasons as to why it did not consider that appropriate (see pp 17-18 of its reasons). This is the kind of assessment that courts and tribunals routinely make in the exercise of their case management responsibilities. There is no point of appeal. 50 We agree with the following views of Palmer J in Tobin v Ezekiel - Ezekiel Estate [2008] NSWSC 1108 at [37]: 37 Litigants are entitled to a fair opportunity to present their case; that does not mean that they can take as long as they like in doing so. The judicial time and administrative [sic] of this State's courts are strained by the press of litigants seeking to have their cases heard quickly and efficiently. No one litigant has the right to insist that his case will consume as much of the Court's time and resources as his own pockets will bear. 51 The submissions also raised the question of whether the presiding member, Ms Huntsman, should have disqualified herself. XJ had put it to Ms Huntsman at the 26 August hearing that because of the way she had treated XJ on the previous occasion (the 13 May hearing) she should recuse herself. In the course of the 26 August hearing, Ms Huntsman did ask XJ if she had been abusive to her. XJ said she did not think so, but she was concerned that she would not get a fair hearing on this occasion. 52 Persons who appear in person in courts and tribunals may be inclined to think that if they have 'lost' (in their terms) on a previous occasion before the same judge or presiding member they will lose again. Not infrequently regular parties in the justice system find themselves coming back before the same judge (the repeat criminal accused, say, in a country town with the one magistrate, the commercial party regularly suing or being sued in commercial jurisdictions of the major courts). More is required before a judge or presiding member should stand aside. 53 It is important for the effective administration of justice, and the avoidance of judge-shopping, that judges not lightly accede to objections (Re J.R.L; Ex p C.J.L (1986) 161 CLR 352 at 351 per Mason J). In our view, there is nothing about this case whereby 'a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide': Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6]. 54 Ground no 9 raises the issue as to whether the NSW Trustee should have been joined to the proceedings as a party. As we have explained, the NSW Trustee's possession of the financial management function means the office has a relevant connection to the issue of accommodation. The matter that received close attention from both Mr Barry as separate representative for XK, and from the Tribunal in its reasons, was the issue of giving XK some secure legal protection of her future accommodation needs (via a life estate). R gave assurances in that regard which the Tribunal accepted. In our view, it was a matter for the judgement of the Tribunal as to whether it need go further, and hear directly from the NSW Trustee. 55 Ground no 10 asserts that the Tribunal misinterpreted a statutory provision. This ground refers to statements in the 2006 Appeal Panel's decision of the difference between the health care function and the medical and dental treatment function. We are not inclined to revisit this matter, several years later. A more recent explanation of this distinction appears in the decision of the President in FI v Public Guardian [2008] NSWADT 263. Leave to Extend to the Merits 56 In her submissions, XJ raised again the issue of giving the Public Guardian the function of making medical and dental decisions. The Tribunal has, to date, declined to add such a function. It has been satisfied that the least restrictive approach should be taken, that being that family carers are allowed to handle the day-to-day medical and dental needs of a protected person living at home with them. 57 In our view, this issue has received ample and careful consideration over many years. It would not be an appropriate exercise of the leave discretion for the Appeal Panel to revisit the matter. There is nothing unusual, in our view, about the way the Tribunal has approached this question in circumstances where its view is that XK is in a happy and caring environment, which, of course, is entirely the opposite of XJ's view. 58 There is one further development that XJ raised. She stated that R and D, along with XK, moved out of the family home on 15 January 2010, on completion of the sale that was on foot at the time of the 26 August 2009 hearing. She asserts that a lawyer with the NSW Trustee has informed her that there has been no life interest granted to XK. She states that they have all moved to a much smaller home than the previous one, but that the NSW Trustee has put a caveat on the home. 59 We simply note these matters. They are known, as we understand it, to the responsible officer at the NSW Trustee. The Public Guardian and the NSW Trustee are part of the one organisation. They are in a position to liaise if there is any reason for concern over lack of adequacy of XK's accommodation and her future security of tenure in that regard. Leave to extend to merits refused. Order

Appeal dismissed except as set out in order 2.
The terms of Order 5 (a) made 13 May 2009, and confirmed 2 September 2009, corrected to read: Health Care To determine what health care, apart from major and minor medical and dental treatment, [XK] may receive.
Registrar of the Administrative Decisions Tribunal to draw this correction to the attention of the Registrar of the Guardianship Tribunal for formal amendment of its current order.

XJ v Guardianship Tribunal

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