ZGV v ZGT [2018] NSWCATAP 55 | Case summary

Ground (b): Whether failure to take into account relevant factors

To paraphrase the words of Dixon, Evatt and McTiernan JJ in House v R [1936] HCA 40; (1936) CLR 499 at 505-6, it is not enough that the members of the Appeal Panel consider that, if they had been in the position of the primary Tribunal, they would have taken a different course. It must appear that some error of law has been made in exercising the discretion.
The principles that their Honours then laid down as to what may amount to an appealable error of law were distilled into five points by Beazley P, Emmett JA and Tobias AJA in Hannaford v Commonwealth Bank of Australia [2014] NSWCA 297 at [14], i.e. has the decision-maker: (a) made an error of legal principle, (b) made a material error of fact, (c) took into account some irrelevant matter, (d) failed to take into account, or give insufficient weight to, some relevant matter, or (e) arrived at a result so unreasonable on unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasons.
Mr Eardley primarily argued that the Tribunal had failed to give sufficient weight to the concerns raised by the appellant as to why it was time to have a guardian appointed (item (d) in the above list), and that its exercise of discretion was so unreasonable that no reasonable decision-maker would have made the decision (item (e)).
Mr Eardley accepted that the Tribunal had properly identified the statutory provisions that bore upon decisions to appoint a guardian, i.e.: 14 Tribunal may make guardianship orders (1) If, after conducting a hearing into any application made to it for a guardianship order in respect of a person, the Tribunal is satisfied that the person is a person in need of a guardian, it may make a guardianship order in respect of the person. (2) In considering whether or not to make a guardianship order in respect of a person, the Tribunal shall have regard to: (a) the views (if any) of: (i) the person, and (ii) the person's spouse, if any, if the relationship between the person and the spouse is close and continuing, and (iii) the person, if any, who has care of the person, (b) the importance of preserving the person's existing family relationships, (c) the importance of preserving the person's particular cultural and linguistic environments, and (d) the practicability of services being provided to the person without the need for the making of such an order. 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.
We interpolate that a 'person in need of a guardian' is a defined term (see s 3) i.e. person in need of a guardian means a person who, because of a disability, is totally or partially incapable of managing his or her person.
As previously noted there is no dispute in this case that ZGT falls within this definition.
While the Tribunal identified correctly the statutory provisions relevant to its task, Mr Eardley's submissions criticised the way the Tribunal then approached its decision-making task. He argued that the Tribunal had placed too much emphasis on the idea that it should as a matter of general principle make the least restrictive order.
For example, the Tribunal said at [12]: The Tribunal is obliged to make the 'least restrictive order' consistent with the safety and welfare of the person in relation to whom the application is brought. Thus, unless it is necessary and in the best interests of the person in relation to whom the application is brought, a guardianship order may not be made even if a person has a disability which prevents him from making important life decisions, as in this case. If an order is made by the Tribunal, it will only be made for a limited period and in relation to specified functions.
With due respect to the Tribunal, we think the statement - 'The Tribunal is obliged to make 'the least restrictive order' consistent with the safety and welfare of the person in relation to whom the application is brought' is not an accurate paraphrase of the nature of the discretion given to the Tribunal by the Act. It misdescribes the approach required by s 14(2). The first sentence of para [12] compresses into a combined proposition the first two general principles set out in s 4, which, to reiterate, are: (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.
The Tribunal's paraphrase excludes from view the other considerations in s 4, and makes no reference to the mandatory considerations found in s 14(2). It also tends to suggest that there is an all-encompassing principle of least restriction.
The Tribunal should have explained that its approach would be based squarely on s 14(2) and then used the internal structure of s 14(2) to frame its consideration, acknowledging in that regard the place the s 4 principles have in the process.
That this is the proper approach was authoritatively explained by the ADT Appeal Panel (Professor Rees, presiding) in IF v IG & Ors [2004] NSWADTAP 3 at [26]-[28]: 26 When undertaking the second step in the process required by s 14 of the Guardianship Act 1987 the Guardianship Tribunal is required to exercise a structured discretion. The Guardianship Tribunal must consider all of the matters set out in s 14(2) before exercising its discretion. The use of the words "shall have regard to" in s 14(2) is a clear indication of the legislative intent that the Guardianship Tribunal is obliged to consider all of the matters set out in that sub-section before exercising its discretionary power. Those matters have no hierarchy or weighting. Each is a mandatory consideration. The Guardianship Tribunal must determine in every case whether one or more of those considerations will be given greater weight than others. Whilst each is a mandatory consideration, in some cases there may be no evidence of one or more of them. In such circumstances it may be prudent for the Guardianship Tribunal to record that fact. 27 Whilst the Guardianship Tribunal must consider all of the matters in s 14(2), it is not limited to considering those matters before determining whether to make a guardianship order. The Guardianship Tribunal is clearly entitled to identify and be influenced by relevant matters other than those set out in s 14(2) when making its decision. 28 In many cases it will be necessary for the Guardianship Tribunal to undertake a balancing exercise for its consideration of some of the matters in s 14(2), as well as any other relevant matters, may cause it to believe that a guardianship order should be made, whilst consideration of other matters may cause it to hold a contrary opinion. When undertaking such a balancing exercise the Guardianship Tribunal may be guided by one or more of the general principles that underpin the legislation which are set out in s 4 of the Guardianship Act 1987. 29 As we have already observed, the second step in the process of applying s 14 involves the Guardianship Tribunal exercising a discretionary power whether to make a guardianship order. It does not have to make a guardianship order even though it is satisfied that a person is a "person in need of a guardian".
Now, the NCAT Act has a provision reinforcing the need to have regard to the s 4 principles in making guardianship decisions. Schedule 6, cl 5 imposes 'a duty to observe the principles referred to in section 4 of that Act'. See further, Lindsay J in P v NSW Trustee and Guardian [2015] NSWSC 579 at [57]-[62].
In the present care, a sound, functioning relationship of care and support exists. As it happens, there is an appointed financial manager, but there is no appointed guardian. The principal carer, ZGV, has undertaken his role for more than 9 years under those arrangements. It may seem to ZGV that because his son is a "person in need of a guardian", he should be provided with a guardian if someone appropriate asks to have such an appointment. The ADT Appeal Panel in IF v IG explained: 31 The language used in s 14 appears to have made the Guardianship Tribunal's complex task more difficult than it need be. That language may generate confusion amongst people who are parties to hearings for in many cases there will be no debate that the person in respect of whom the hearing is being held is a "person in need of a guardian". In such circumstances relatives and friends of the person who is a "person in need of a guardian" may expect that a guardianship order should and will be made. But, as the foregoing analysis of s 14 demonstrates, that it not what the statute says. Having found a person to be a "person in need of a guardian" the Guardianship Tribunal must then exercise a broad discretionary power before a guardianship order may be made.
While, in our view, the Tribunal did not properly describe the approach it should take in the first sentence of para [12] reasons, we are satisfied that in the body of its reasons it did engage in the kind of weighing task contemplated by s 14(2).
The appellant submitted to the Tribunal that it would be easier, in various ways, for him to handle his son's needs in future if he did not have to continue to deal with external parties on the basis of the trust accorded to him by those external parties or, where Part 5 issues arose (medical and dental consents) in the capacity of a 'person responsible'. He saw it as helpful to be the appointed guardian, and to be seen in that way by those with whom he dealt. Ultimately the Tribunal came to the view that each of the examples he raised were hypothetical ones. He had not demonstrated that there was any present problem in his ability to make decisions in relation to such matters as care needs, accommodation and medical and dental consents that might require an alteration to the status quo.
The Tribunal noted that he had an active say in the appointment of carers. The financial manager had left it to ZGV to make the final decision in relation to the professional carers who were allowed into the home to care for him. ZGT's accommodation in the home was secure. The home had once belonged to his deceased grandmother and had passed to her grandson, ZGT by way of a life estate, and he and his brother had a right to reside there for the term of the life estate. The Tribunal was not satisfied that there was any evidence that ZGV had been impaired in dealing appropriately with medical and dental consent issues by relying on his status as a 'person responsible' under Part 5 of the Act. The Tribunal acknowledged ZGV's submission that he saw value in being appointed a guardian so as to be a 'voice' for his son in dealing with doctors, hospitals and nurses.
It is clear, we think, from the Tribunal's reasons and submissions at our hearing, that ZGV is anxious about changes of circumstances that may occur in the future He is now an older man. He is worried that the GP that has been so involved in his son's case and his son's care needs, Dr Roberts, was now winding down his practice and may soon retire. The Tribunal noted that the appellant was in the course of setting up a company which will enable him, as its director, to employ staff directly. The financial manager has approved this change of arrangements. Previously the staff have come from an agency. According to the Tribunal's decision, he said that he had some difficulty in the past with some nurses, and felt that if he was the official guardian a difficult nurse would take more notice of him.
Mr Eardley in his submissions to us alluded to the significant financial savings that was hoped to be achieved by a direct employment approach of the kind now envisaged as against the agency model. ZGV had driven this change, because of his concern to reduce the speed with which the compensation fund was diminishing (annual current care costs were said to be close to $1M).
While the following concern does not appear in the Tribunal's reasons, it was raised a number of times before us. It was the question of how ZGV would go about dealing with an emergency situation that required his son's speedy removal into hospital care. The nearest regional hospital is the one where the calamity occurred that led to his son's present condition. He would probably not want to take him there in an emergency situation, but instead seek to go to a more distant suitable hospital in a neighbouring region. He felt that he would be better placed to get his way in that regard (for example in dealing with the ambulance service) if he had the status of a 'guardian'. Again this was a concern that had a hypothetical character.
Some emphasis was given to the Tribunal's failure to note in its reasons that people immediately associated with ZGT's care needs had supported ZGV's application to be made a guardian. In our view, these were no more than general statements of support. They are simply to be seen as indicating that their authors (doctors, the financial manager) saw ZGV as highly suited to undertake that role. None of the testimonials set out any reasons that might make it desirable to have a guardian appointed because of difficulties with the existing situation.
While many persons with disabilities have had guardians appointed, there are many more who have their support needs managed by those close to them in a way that is satisfactory, and there is no necessity for one of those close to them to be made the guardian. The Tribunal clearly saw this as a case of the latter kind. In its concluding remarks it said: 30. Pursuant to section 4 of the Guardianship Act 1987, the Tribunal must act in the paramount best interests of a person about whom a guardianship application has been made, balancing the considerations set out in section 4. 31. In this case, it appear that [ZGV] has been able to successfully negotiate accommodation, treatment, care arrangements and all services required by his son [ZGT] on an informal basis since his injury in June 2009. 32. In the Tribunal's opinion there is no present need for the appointment of a guardian for [ZGT] ...
While we think, for the reasons given earlier, that the Tribunal did at para [12] of its reasons misdescribe the nature of its task, it did not we think undertake an analysis that was in fact tilted in one direction or the other. It had regard to the circumstances before it, and the concerns raised by the appellant, in a way that placed at the forefront of its analysis the welfare and interests of the subject person.
This was not a case of the kind sometimes seen in the guardianship jurisdiction where family conflict or failings by the active carer of the disabled person, have made it necessary to establish a single point of authority in the form on an appropriately skilled guardian. In this instance it is plain that the opposite situation has existed - a competent and loving carer doing a very good job, and working co-operatively with those around him, especially the financial manager.
Mr Eardley submitted that the principle to which the Tribunal had clearly given weight (especially in the first sentence of [12] - '(b) the freedom of decision and freedom of action of such persons should be restricted as little as possible' - had, in fact, been given too much weight in a case of this kind. As Ground 2 of the original notice of appeal had reflected, he argued that it had no significant role to play in a case where the subject person was in a 'vegetative state'. The Tribunal referred to ZGT's condition at the beginning of its reasons in an accurate way. It was aware of the degree of his physical and cognitive disabilities. In our view, it does not follow for persons with extreme physical and cognitive disabilities the principle of least restriction as reflected in s 4(b) loses all force, and can properly be disregarded entirely. The principle speaks, we think, to the value of seeking to maintain, for all people including those with disabilities of an extreme kind, 'equal recognition before the law' (see Article 12, UN Convention on Rights of Persons with Disabilities).
Nonetheless, as is well explained in IF v IG, the ultimate decision whether to appoint a guardian under the Act is a discretionary one informed by the mandatory considerations of s 14(2) and the general principles set out in s 4.
In conclusion, the Tribunal did have regard to the views of 'the person who has the care of the person' (s 14(2)(a)(iii)), the Tribunal did not act in a way that diminished in any way 'the importance of preserving the subject person's existing family relationships' (s 14(2)(b)), there was no issue in the case as to 'the importance of preserving the person's particular cultural and linguistic environments' (s 14(2)(c)), and the Tribunal looked very closely at 'the practicability of services being provided to the person without the need for the making of such an order' (s 14(2)(d)). While it did not expressly refer to the text of s 14(2)(d), it is plain that it was conscious of it, and dealt at some length with matters relevant to that consideration. It concluded that the balance of factors did not favour the making of a guardianship order.
We are not satisfied that the Tribunal exercised its discretion in a way that failed to have regard to relevant matters, or gave them insufficient weight. It was not a decision so unreasonable that no reasonably-minded tribunal could have reached it.
As a postscript, we note that the Tribunal used in its reasons the dichotomy 'formal' versus 'informal', to differentiate between decision-making for a subject person that is founded on the authority and status conferred by appointment as a guardian ('formal') and decision-making for a subject person that is made by a trusted person involved in the day to day care of the subject person, as is seen here ('informal'). The appellant submitted to us that the time had arrived to make formal the previously informal arrangements. His submissions gave some emphasis to the inexact and amorphous nature of the word 'informal'. We think that the use of the distinction 'formal' versus 'informal' may tend to suggest to readers that an 'informal' arrangement is a weaker and less protective one. It may be that another way of expressing the difference may be preferable, possibly 'statutory' versus 'non-statutory'.

Adequacy of Reasons for Decision

Courts and judges have a common law duty to give adequate reasons. In the case of administrative decision-makers and administrative tribunals, any obligation they have to give reasons must be derived from statute. As to these matters, and the approach to be taken to the construction of the nature of a statutory duty, see Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43.
The Tribunal in this case consisted of a three member panel, made up of a lawyer as presiding member and two members with special expertise in guardianship issues. The duty of a panel constituted in this way to give adequate reasons derives from statute, in this instance from the general principles in the NCAT Act, ss 36-38, 62 and the provisions which apply specifically to the Guardianship Division at Sch 6, cl 11 of the NCAT Act. So far as the nature of the duty in the case of the ADT, see generally Sikka v Roads and Maritime Services (GD) [2013] NSWADTAP 28 at [18]; and now in relation to the Civil and Administrative Tribunal, Collins v Urban [2014] NSWCATAP 17.
The leading authorities on the need for to give adequate reasons emphasise the importance of decision-maker engaging with the central questions with which it has been called on to deal. They also emphasise the need not to engage too fine a parsing of the reasons, and to be mindful of the busy docket environment in which many cases are determined. They reasons are to be read as a whole, and fairly.
For a recent illustration of an approach of this kind, see the judgment of Beazley ACJ (White JA and Sackville AJA agreeing) in Minister for Mental Health v A [2017] NSWCA 288 at [43]-[67]. The court upheld the adequacy of reasons given for the conditional release of a forensic patient by a statutory tribunal, the Mental Health Tribunal, and rejected the Minister's submissions to the contrary.
In our view, as, we think, our examination of the way the Tribunal addressed the circumstances upon which the appellant relied in support of his application illustrates, the Tribunal provided adequate reasons for its decision. It engaged with the central task, it regard to the concerns put to it, dealt with them, and in the ultimate reached the conclusion that there was no need, at this point, to go further and make a guardianship order.
We have addressed the two issues agitated by the submissions at hearing. There are no reasons that warrant, what would in effect be, a review of the merits. The outcome is not an unjust or unfair one for the subject person. Permission to extend the appeal to grounds beyond questions of law is refused. It is always open to make a further application for a guardianship order if circumstances change.

ZGV v ZGT

At a glance

Court

Decision date

Before

Source

Judgment (6 paragraphs)

Parties

Cases Cited (6)

Cited By (3)