Judgment - EX TEMPORE
Revised and issued 1 May 2018
These are judicial review proceedings arising out of proceedings in the New South Wales Civil and Administrative Tribunal. The proceedings concern the financial affairs of Patricia Ewart Bellamy who is the plaintiff in these proceedings. The Tribunal proceedings are brought by Skye Bellamy who is Mrs Bellamy's daughter and the first defendant in these proceedings. The second, third and fourth defendants in these proceedings are other members of Mrs Bellamy's family who are parties to the Tribunal proceedings. The fifth defendant is the Tribunal itself.
The Tribunal proceedings consist of two applications. One is an application to the Tribunal to have a financial manager appointed with respect to Mrs Bellamy's affairs under the Guardianship Act 1987 (NSW), s 25E. The other is an application to the Tribunal for review of an enduring Power of Attorney under s 6J. The Power of Attorney was executed by Mrs Bellamy in February 2010 and appoints David Kenneth Bellamy and Sheena Symons as Mrs Bellamy's attorneys. David Bellamy is the son of Mrs Bellamy. Sheena Symons is Mrs Bellamy's daughter.
Mrs Bellamy was born in December 1938, and is therefore 79 years old. She is divorced and lives alone at Moss Vale in the Southern Highlands. She has been living, and continues to live, independently.
These proceedings arise out of an interlocutory dispute in the Tribunal proceedings. In January and February of this year, the Tribunal made various orders for the production of certain categories of documents for the purposes of the proceedings before it.
Orders in the same terms were made in relation to each of the applications before the Tribunal, namely the financial management application and the power of attorney review application. The orders required:
(a) Mrs Bellamy to produce her income tax returns for the financial years 2015/16 and 2016/17;
(b) Mrs Bellamy or her attorneys to give to the Tribunal details of her current assets and investments, copies of any financial plan and details of any investment made with a company called OPENetworks Pty Ltd;
(c) Mrs Bellamy's attorneys to provide statements and supporting records of all actions they have taken as her attorneys over the preceding three years and statements of all advice they provided to her as to her financial investments over that period;
(d) David Bellamy to provide complete copies of "each of the three documents containing the terms of the convertible notes Mrs Patricia Bellamy holds with OPENetworks Pty Ltd".
The company OPENetworks Pty Ltd appears to carry on an investment business from an address in Queensland and to have some connection with David Bellamy or perhaps his wife's children.
I understand that the documents have now been produced to the Tribunal. The issue between the parties concerns the access which should be granted to those documents. On 21 February an application was made by Mrs Bellamy's solicitor to the Tribunal for an order pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW) confining the disclosure of the documents in question. Although the application seems, originally, to have been put in wider terms, it is the production to Skye Bellamy which appears to be the particular issue.
Mrs Bellamy's application was refused by the Tribunal on 28 March 2018. For the purpose of that application, the Tribunal was constituted by Ms J Moir, a Senior Member (Legal) of the Tribunal. The effect of the decision is that the documents in question will be available to all parties to the Tribunal proceedings, including Skye Bellamy as the applicant. Following the initiation of these proceedings, however, the Tribunal has not in fact released the documents to Skye Bellamy and will not do so until this Court has resolved the present application.
These proceedings were commenced by way of urgent ex parte application in the Duty List on 4 April, as a result of which I made orders for short service. The Tribunal proceedings are fixed for hearing tomorrow, 10 April. Because of the impending hearing date, the return date was fixed for today. Mrs Bellamy and Skye Bellamy have each been represented by counsel.
When these proceedings were commenced, an application was made for interlocutory relief, in the form of an order staying the Tribunal's decision. The decision in question was only one refusing to make a s 64 order, but as a matter of practicality the application for interlocutory relief was understood as an application for an order which would prevent the Tribunal from releasing the documents to Skye Bellamy until the Court had finally determined the challenge to the orders made on 28 March. It was not immediately clear what effect that would have on the hearing fixed for tomorrow, but it seemed to me that rather than have an interlocutory hearing followed by a final hearing at a later point, it was desirable, if at all possible, for the challenge to the orders made on 28 March to be resolved now. Counsel for both parties agreed to pursue this course. Accordingly, I have treated today's hearing as a final hearing of the challenge made to the Tribunal's decision in the Summons.
The material before the Tribunal is in evidence before me in these proceedings. That material includes some evidence which has been lodged with the Tribunal on behalf of Mrs Bellamy concerning her mental condition. A report from Mrs Bellamy's general practitioner, Dr Stephen Barnett, dated January 2018 records that Dr Barnett had recently administered a "mini-mental state examination" in which Mrs Bellamy had scored 28 out of 30, which is said to be in the normal range and to indicate no evidence of dementia. Dr Barnett expressed the opinion that the testing indicated no disability, and that there were no concerns about Mrs Bellamy's cognitive ability so far as self-care was concerned. Dr Barnett expressed the conclusion that her condition required no further treatment.
Also provided to the Tribunal is a report of Dr John Barnett (I assume no relation), a consultant geriatrician. The report is dated February 2018 and records the result of an assessment undertaken by Dr Barnett on 7 February. Dr Barnett administered a cognitive test to Mrs Bellamy. The test was broken down into different areas. Mrs Bellamy scored less than full points on memory and fluency, but otherwise achieved full marks. Dr Barnett concluded that the test results "do not indicate dementia but may suggest early short-term memory problems associated with ageing". Dr Barnett expressed the conclusion that Mrs Bellamy is:
cognitively intact, with perhaps early short-term memory difficulty associated with aging. She does not have dementia and is not depressed. She appeared sensible. I believe she has capacity to determine what is in her best interests and protect her own welfare and interests. I believe she can manage her own financial affairs and provide instructions in legal proceedings at the Tribunal.
Counsel for Mrs Bellamy submitted that in the light of this evidence the applications to the Tribunal by Skye Bellamy could not succeed. In particular, counsel referred to the Guardianship Act 1987 (NSW) 25G, which sets out the grounds for making a financial management order of the type sought by Skye Bellamy. That section provides:
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.
Counsel submitted that, on the evidence, Mrs Bellamy is perfectly capable of looking after her own financial affairs. She has no disability, and if she chooses, by means of the power of attorney or otherwise, to place her investments in a particular way, she is entirely free to do so, and it is none of Skye Bellamy's business. On the evidence presented before me, these submissions have considerable force at a factual level, but this Court does not sit to review decisions of the Tribunal on matters of fact. The Parliament has conferred the power to make decisions under the Guardianship Act on the Tribunal and if this Court is to intervene it must be shown either the Tribunal has acted beyond the jurisdiction which Parliament has conferred on it, or that the Tribunal has made an applicable error.
In the ordinary course, it will be a matter for the Tribunal to decide on the material before it, whether the conditions as set out in s 25G are satisfied. For this purpose, the Tribunal does not operate in the way in which courts normally operate in adversarial proceedings between parties. The Tribunal is not bound by the rules of evidence. It may apply its own expertise and experience. This application is pending in the Guardianship Division of the Tribunal. In that Division, I was informed, the Tribunal is usually constituted by three members, one of whom has professional qualifications in the assessment of incapacity, incapability and related issues. The Tribunal must take into account the evidence put forward on behalf of Mrs Bellamy, including the medical evidence to which I have referred. But it is not bound to take account of that evidence to the exclusion of all other material. The applications to the Tribunal were supported by a statement from Skye Bellamy which described her experience in dealing with her mother in recent times. That is material which the Tribunal is entitled to take into account. The Tribunal may also make its own investigations and, I was informed, the Tribunal often proceeds by means of direct interview with the person whose affairs are the subject of the application (without lawyers being present).
All of this means that the ultimate decision as to whether the requirements of s 25G are satisfied must in the ordinary course be left to the Tribunal, and it is for the Tribunal, in its own wisdom, to control what material it takes into account and what weight it gives to that material in making its decision.
Strong though the evidence presented on behalf of Mrs Bellamy appears at this point, in my opinion it cannot be said that the outcome of the proceedings in the Tribunal can be determined as a matter of certainty.
It is also necessary to bear in mind the test which the Tribunal must apply under s 25G(a). The Tribunal must decide whether Mrs Bellamy is a person who is "not capable of managing her own affairs". A person whose mental capacity has been compromised may well satisfy that test, but it is also possible for somebody whose mental capacity has not been compromised also to satisfy it. A person who, through being under the influence of some other person or perhaps simply as a result of being misinformed, may be "not capable" even though that person's mental capacity as measured by cognitive testing is perfectly sound.
In this regard, the law has been modernised. The test under the former law was more closely tied to mental capacity. It needs to be clearly understood that this is no longer the case. The fact that an application has been made and is entertained by the Tribunal, does not necessarily mean that any doubts are entertained about the cognitive abilities of the person who is the subject of the application.
Counsel for Mrs Bellamy emphasised that the Tribunal could only make a financial management order if satisfied that Mrs Bellamy was "not capable of managing her own affairs". It is true that no order can be made unless, and until, the Tribunal is ultimately satisfied of that. But that does not mean that it is open to this Court to seek to interfere with the process of material being put before the Tribunal. As I have mentioned, Parliament has given the responsibility for that process to the Tribunal, subject only to judicial review by the Court.
Counsel for Mrs Bellamy stressed the intrusive nature of the requirements to produce information concerning extensive details of her financial affairs when it has not even been established that she lacks the necessary capability. It may be that, in some cases, it would be possible for the Tribunal to proceed in a two-stage way by first considering a person's mental state and associated medical questions and only then, if satisfied there was an issue about that matter, to proceed to make inquiries about the detail of that person's financial affairs. However, the way in which any particular hearing is conducted is a matter for the Tribunal. Parliament has left it up to the good sense of the Tribunal to decide how to proceed in this regard.
Furthermore, because of the wide definition of "capability", it cannot be said that information about the financial affairs of the person in question is irrelevant to the question of capability. Accordingly, in my view, it is within the power of the Tribunal to entertain the proceedings and it was within the power of the Tribunal to require Mrs Bellamy to produce the documents.
On Mrs Bellamy's case, her frustration is understandable. If, as she says, she is capable of managing her affairs, and has chosen not to involve her daughter Skye in that process, it must be galling to be put in the position of having to attend the Tribunal and justify herself to that body. But that is the consequence of the system which Parliament has prescribed for protecting the rights, and advancing the interests, of persons who may arguably lack capability. I do not suggest that this is necessarily the case for Mrs Bellamy, but there are instances where a person lacks capability but is in denial as to that lack of capability. There must be some independent mode of enquiry, so that questions of incapability can be determined, and appropriate orders made in the interests of those who lack capability and also lack the insight to realise the difficulties they are labouring under.
What I have said so far establishes that it was within the Tribunal's power to entertain the applications by Skye Bellamy and to require the production of the documents specified in the Tribunal's order. The release of the documents in question to Skye Bellamy is a separate matter.
Since the decision was given on 28 March, a written set of reasons has been provided by the Tribunal. I understand that this was done at short notice to allow the Court to have a set of reasons for the purpose of dealing with this application. The Court is grateful to the Tribunal for taking that step.
In the reasons, Ms Moir addressed why she had refused to make an order under s 64(1)(d). She said this (at [45]):
The terms of s 64(1)(d) are such that an order prohibiting the disclosure of the financial information provided relates to the documents and the contents of documents. This means that an order under s 64(1)(d) would prohibit disclosure of the documents, as well as discussion of that evidence at the hearing if Ms Skye Bellamy was present. Potentially, this would mean that Ms Skye Bellamy would have to be excluded from the hearing whenever there was discussion of Mrs Bellamy's financial situation. Given the nature of the applications, this would be the bulk of the hearing. This would be a very significant departure from the Tribunal's usual practice and, in my view, would seriously impinge on the Tribunal's application to conduct its processes fairly and transparently and with regard to natural justice."
Ms Moir expanded on this by identifying what she described as "two significant problems" which would be likely to hinder the Tribunal in discharging its duties if it were to accede to the application and prevent the disclosure of the material to Skye Bellamy. First, the Tribunal would not have the opportunity to hear Ms Bellamy's evidence and submissions on the material in question. Ms Moir continued (at [47]):
This would conflict with the Tribunal's obligation under s 38(6)(a) of the Act to ensure that all relevant material is disclosed so as to enable it to determine the relevant facts. Given Ms Skye Bellamy's knowledge of her mother and the history prior to these proceedings, as well as her familiarity with financial matters, her views are likely to be relevant to determination of the facts.
Ms Moir added (at [48]):
Secondly, as the applicant, it is open to Ms Skye Bellamy to raise questions regarding the evidence and to make submissions. However, if the financial evidence is withheld from her, the burden of examining and questioning this evidence would fall entirely on the Tribunal. In my view, this could reasonably raise concerns in the minds of the other parties about the Tribunal's impartiality in this matter. In short, I considered that not allowing the applicant access to the evidence that has been submitted would hinder the Tribunal in its obligation to facilitate the just and fair resolution of the real issues in the case.
Making due allowance for the fact that the Tribunal's reasons have had to be produced urgently, I am troubled by some aspects of this reasoning.
Section 64(1)(d) is a provision which applies generally to proceedings in the Tribunal. Most proceedings in the Tribunal are ordinary adversarial proceedings and in those proceedings the rules of natural justice generally apply so as to require the Tribunal to afford various procedural safeguards to the parties. One elementary safeguard is that, except in extraordinary circumstances, the rules of natural justice prevent a party from being deprived of an opportunity to make full submissions on the issues to be decided by not being provided with all of the evidence which is before the Tribunal. But guardianship proceedings are not of that character.
The "issue" in guardianship proceedings is whether a guardianship order should be made in the interests of the person who is the subject of the application. That person's rights and freedoms will be affected by the order and, clearly, before any order is made restricting that person's rights, that person must have full access to the material on which the Tribunal acts. But the same cannot be said of a person whose only status is that of an applicant who asks the Tribunal to make the relevant order.
In a legal sense, Skye Bellamy has no interest in the outcome of the applications before the Tribunal. A decision by the Tribunal either to make a financial management order, or to refuse it, will have no impact on any rights she has. Her only role in the proceedings is as the party who has set into motion the process of the Tribunal inquiring into whether her mother is capable of looking after her own financial affairs. Skye Bellamy is not a party in the sense that a person who brings or resists a claim for damages, or for some other legal remedies is.
The language of the Tribunal in the passages which I have quoted suggests, to my mind, that the Tribunal may have proceeded on the basis that not to give Skye Bellamy access to the relevant documents, would be to deprive her of some sort of entitlement, as a party to the proceedings, and thereby deny her "natural justice". If that was the Tribunal's view, then I think it is wrong.
The Tribunal's obligation in the present case is to inquire into the suggestion of incapability to the best of its ability and in the interests of Mrs Bellamy. In doing so, as I have said, the Tribunal is required to afford natural justice to Mrs Bellamy and to give her a full and fair opportunity to be heard before making orders which would impinge on her freedoms and her interests. It owes no such obligation to the other persons involved in the proceedings, whether they are formally joined as parties or not. In my opinion, it would be wrong to see a person in Skye Bellamy's position as having some sort of presumptive right to be provided, before the Tribunal makes its decision, with all of the material before the Tribunal going to the questions in issue.
The Tribunal may, of course, receive submissions from anyone from whom the Tribunal wishes to do so, but I do not accept the Tribunal owes an obligation to receive submissions from anybody just because that person happens to be a party to the proceedings, or even the applicant in the proceedings. I therefore do not think that a failure to afford Skye Bellamy full and unfettered right to make submissions and access to documents produced to the Tribunal relevantly raises questions about the Tribunal's impartiality (to quote the language in [48] of the Tribunal's reasons). The Tribunal is not engaged in an exercise of determining a legal issue, with consequential rights and obligations, as between Mrs Bellamy on the one hand and Skye Bellamy on the other. For these reasons, it seems to me that the Tribunal's reasons for decision indicate an error of approach.
The Summons filed on Mrs Bellamy's behalf did not articulate a challenge along these lines to the Tribunal's decision. The grounds for judicial review as asserted in the Summons were that the decision in question was "an abuse of process" or, alternatively, that the Tribunal "did not have jurisdiction to make the decision".
The error which I have identified does not render the decision an abuse of process (indeed, I think it is inapt to speak of the Tribunal abusing its own process; it is a party that abuses a process of the Tribunal). Nor was the error one which would deprive the Tribunal of jurisdiction to make the decision which it did.
Somewhat belatedly, counsel for Mrs Bellamy sought to rely on the error which I have identified. It is possible that such an error could have been the subject of an application for leave to appeal from the Tribunal's decision. However, no such formal application has been made.
There are also substantial discretionary reasons why the Court would not intervene so as to set aside the Tribunal's order. The first is that, although the Tribunal refused to withhold the documents in question from Skye Bellamy, it did order that she not disclose the documents to anyone other than a party to the proceedings. Counsel for Mrs Bellamy suggested that it would be cold comfort to Mrs Bellamy if Skye Bellamy did publish the documents elsewhere and proceedings then had to be brought for contempt. But I see nothing whatsoever in the evidence to suggest that Ms Bellamy would do any such thing.
Furthermore, although I consider that the factors mentioned by the Tribunal involve an extraneous and incorrect consideration, the Tribunal's reasoning is not wholly erroneous. As I have mentioned, the Tribunal has an obligation to deal with the application by making inquiries into the question of capability as best it can. It is the Tribunal's responsibility to decide how best to go about that task. If the Tribunal had put aside the question of the supposed requirements of natural justice, so far as Skye Bellamy was concerned, and focused solely on what course was best calculated to result in the best decision in the circumstances, it would have been open to the Tribunal to conclude that it would be assisted by hearing Ms Bellamy's submissions. This was a factor referred to in the Tribunal's decision at [47], which I have already quoted. In other words, even if I were to set aside the Tribunal's decision and remit the question for reconsideration by the Tribunal, it is possible that the Tribunal would end up making the same decision again.
I appreciate the frustration to Mrs Bellamy in having Skye Bellamy see the documents which Mrs Bellamy does not want her to see. But given the safeguards imposed by the Tribunal's order, and given the fact that the hearing date is so close, I do not think that the error which I have detected in the Tribunal's reasoning should lead me to take the step of setting aside the Tribunal's order, and potentially imperilling the hearing date. It is in all parties' interests for the application to be dealt with, and the air cleared as quickly as possible; Mrs Bellamy's above all.
For these reasons, the grounds put forward for the Summons do not sustain Mrs Bellamy's claim, and the proceedings must be dismissed.
There being no application, there will be no order as to costs.
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Decision last updated: 01 May 2018