EY v Guardianship Tribunal of NSW

Judgment

1. [1]

   WARD JA: Emmett JA will deliver the first judgment.

2. [2]

   EMMETT JA: On 15 November 2012, the Guardianship Tribunal (the Tribunal) made orders under the Guardianship Act 1987 (the Guardianship Act) in respect of the applicant's mother, who is a protected person. Section 67(1)(a) of the Guardianship Act provides that a party to a proceeding before the Tribunal may appeal to the Supreme Court as of right from any decision of the Tribunal on a question of law. Section 67(1)(b) provides that a party may appeal to the Supreme Court from any decision of the Tribunal on any other question but only by leave of the Supreme Court. By summons filed on 28 December 2012, the applicant sought to have the Tribunal's orders set aside. On 21 June 2013, counsel for the applicant applied in those proceedings for leave under s 67(1)(b). Lindsay J refused leave to appeal from the Tribunal's orders. The applicant now seeks leave to appeal from the decision of Lindsay J. Although the Tribunal has been joined as the first respondent to this application, the parties accept that it is not a proper party to the proceedings and that it should not have been joined.

3. [3]

   By its orders of 15 November 2012, the Tribunal appointed the applicant's sister as their mother's guardian to make decisions on her behalf about certain matters and appointed the Public Guardian as their mother's guardian to make decisions on her behalf in relation to other matters. Both appointments were made for a period of twelve months. The Tribunal also committed their mother's estate to the New South Wales Trustee and Guardian, on the basis that that order would be reviewed in twelve months' time. Windeyer AJ granted the applicant leave to file an amended summons in the proceedings seeking leave under s 67(1)(b) of the Guardianship Act. For reasons that are unexplained, that leave was not taken up.

4. [4]

   When the matter came before Lindsay J on 21 June 2013, it appears that seven grounds were advanced as to why the decision of the Tribunal was erroneous. Three of those grounds were propounded as involving questions of law. Lindsay J rejected that contention. That rejection led to the application for leave under s 67(1)(b) to appeal on the seven questions propounded on behalf of the applicant, since they do not involve questions of law and so are not subject to an appeal as of right. Lindsay J gave brief ex tempore reasons for concluding that leave should not be granted. His Honour referred to the relevant authorities and no challenge has been made to their correctness.

5. [5]

   Various considerations govern a determination as to whether leave should be given under s 67(1)(b). Those considerations include whether the question raised involves a matter of administration or policy that might have general application. Another consideration is whether the decision of the Tribunal has been arrived at after the Tribunal's members have directed themselves properly and fairly on the facts and have not made an error of law. A third consideration is whether there is an error that is plain and readily apparent and that is central to the Tribunal's decision and not merely peripheral, such that it would be unjust to allow the Tribunal's conclusion to stand. Parliament has entrusted the Tribunal with the primary function of making the factual determinations required for a guardianship order.

6. [6]

   The Court should not grant leave to appeal unless the Tribunal has gone about its fact-finding process in a way that is so unorthodox as to be likely to produce an unfair result. Brief consideration of the seven errors on the part of the Tribunal alleged on the applicant's behalf indicates that that criterion has not been satisfied.

7. [7]

   The first error alleged is that the Tribunal erred in finding that the applicant's sister, the fourth respondent, was at any time their mother's carer. The applicant seems to dispute the finding that his sister had been the person most involved in medical and health decisions in recent times. There is no basis on the material to which we have been taken for concluding that that finding was erroneous. Rather, it was supported by the evidence of their mother's general medical practitioner, who had treated her for the last thirty years.

8. [8]

   The second alleged error is that the Tribunal erred in not putting due weight on the applicant's evidence. However, there appears to be no substance in that assertion. The Tribunal referred explicitly to the applicant's evidence in its reasons.

9. [9]

   Thirdly, it is suggested that the Tribunal erred in disregarding the evidence of a Dr Lamont. Dr Lamont had not, at any stage, treated or assessed the applicant's mother. The Tribunal observed that it was unable to consider Dr Lamont's reports as expert evidence, nor take expert evidence from him during the hearing. It considered that much of what he reported on was information derived from the applicant, not his own observations. There was no error in that approach.

10. [10]

    The fourth alleged error is that the Tribunal erred in accepting the evidence of Dr Chan and Dr Gotis. This ground is curious. The Tribunal did not explicitly refer to the evidence of either of those doctors. In any event, that is a matter of fact-finding for the Tribunal.

11. [11]

    Next, it is said that the Tribunal erred in accepting the evidence of an Assyrian priest. There is no reference to an Assyrian priest in the Tribunal's reasons and it is difficult to understand to what that complaint is directed.

12. [12]

    The sixth alleged error is that the Tribunal erred in not hearing evidence from all the family members, especially when family members were in dispute. However, the Tribunal explicitly acknowledged the views of the applicant's brothers in its reasons. It observed that several of his brothers were present at the hearing and that they supported his, rather than their sister's, appointment as guardian.

13. [13]

    Finally, the seventh alleged error is the Tribunal did not seek the views of the applicant's mother as to where she wished to live and whom she wished to have as her principal carer. To the extent that that assertion might be established, it is explained by the Tribunal, which said that the applicant's mother attended the hearing but, because of her disabilities, the Tribunal found it very difficult to communicate with her. The Tribunal observed that she was clearly distressed by the disagreements amongst family members and wanted contact with all of them. There is no substance in the seventh ground.

14. [14]

    Nothing has been suggested that would demonstrate that the Tribunal went about its fact-finding process in a way that was so unorthodox that it would be likely to have produced an unfair result. I am not persuaded that there would be any prospects of success if leave to appeal from the decision of Lindsay J were granted. In my view, the application for leave to appeal should be dismissed with costs.

15. [15]

    WARD JA: I agree with the reasons of Emmett JA. I simply add that on the hearing of the application for leave this afternoon, reference was made to an additional ground in the amended submissions, which was that the Tribunal did not exercise its function under s 15(3) of the Guardianship Act when it appointed the Public Guardian in that no alternative guardian was considered. An error of that kind was not the subject of the application for leave to appeal before Lindsay J, having regard to the proposed grounds of appeal that were before his Honour and to which this Court was referred this afternoon. In any event, the Tribunal's reasons set out its reasoning in relation to why the Tribunal found that there was no private guardian that was suitable and it is clear from that that the Tribunal had regard to that matter. I agree with Emmett JA that the application for leave to appeal from Lindsay J's decision should be refused.