BWW v NSW Trustee and Guardian

The legal test for revocation of financial management orders

1. Section 25P(2) of the Guardianship Act 1987 (NSW) sets out the legal test to be applied when considering an application to revoke a financial management order: The Tribunal may revoke a financial management order only if: (a) the Tribunal is satisfied that the protected person is capable of managing his or her affairs, or (b) the Tribunal considers that it is in the best interests of the protected person that the order be revoked (even though the Tribunal is not satisfied that the protected person is capable of managing his or her affairs).
2. The orders the Tribunal may make after reviewing a financial management order are set out in s 25P(1): (1) On reviewing a financial management order under section 25N, the Tribunal: (a) must vary, revoke or confirm the order

Tribunal's decision

1. The Tribunal accurately summarised the legal test for revocation of financial management orders at [11] and [12] of the decision. The Tribunal then set out the medical evidence provided by Dr Sharma, a psychiatrist who provided reports in October and November 2011, Mrs Lee Coit-Riley, a mental health case manager who provided a report in August 2014 and Dr Puttman, a psychiatrist who assessed the appellant in September 2014. The financial manager was at the hearing and gave evidence which the Tribunal summarised at [22] to [28].
2. The Tribunal was not persuaded that the appellant was capable of managing his own finances or that it was in his best interests that the order be revoked.

Principles for granting leave to appeal other than on questions of law

1. In Collins v Urban [2014] NSWCATAP 17 at [84] the Appeal Panel summarised the principles for the granting of leave to appeal: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there.

Ground 1 - decision based on incorrect information

1. The first ground of appeal was that the Tribunal had relied on incorrect information. At [25] of the decision, the Tribunal wrote that: [The financial manager] advised however, a couple of years ago, [the appellant] got into some credit card debt (around $15,000), and around 2-3 years ago, [the appellant] received two compensation payments totalling $14,000.00, which [the financial manager] only learned about after [the appellant] had spent the funds.
2. According to the financial manager, he has not had a credit card debt in the last two years. He admits that he was having problems paying off his credit card in 2008 but said he got rid of his credit card and has not been in debt since. The financial manager acknowledged that he could not remember exactly when the appellant was in financial difficulties with credit card debt but agreed that it could have been more than two years ago.
3. Assuming that the appellant's problems with credit card debt occurred in 2008, does the Tribunal's mistake as to when that occurred justify giving leave for the appeal to go ahead? Applying the tests summarised in Collins v Urban [2014] NSWCATAP 17 the finding, though incorrect, was not made unreasonably or in an unorthodox way. It was based on evidence the financial manager gave at the Tribunal hearing and which could not be contradicted by the appellant because he was not there. Nor was the Tribunal's mistake central to its decision. Whether the debt was incurred six years ago or two years ago, the fact of the debt was a relevant matter for the Tribunal to take into account.
4. Before revoking the financial management order, the Tribunal had to be positively satisfied that the appellant was capable of managing his affairs or that it was in his best interests to do so: Guardianship Act, s 25P. The appellant did not provide any documentary evidence as to how he had been managing his financial affairs or how he intended to manage those affairs, apart from the statement that he was not having any financial difficulties. Without that evidence, the Tribunal could not be positively satisfied of the matters in s 25P. In those circumstances, we are not persuaded that if the Tribunal had known that the credit card debt had been incurred six instead of two years ago, it would have made any difference to its decision.

Ground 2 -decision based on a misunderstanding of the evidence

1. The second ground of appeal was that the Tribunal mistakenly found at [25] that two or three years ago the appellant received two compensation payments totalling $14,000, which the financial manager only learned about after the appellant had spent the money. The appellant told the Appeal Panel that he had been awarded two separate amounts of compensation in 2004 and 2007, not two or three years ago. The financial manager told the Appeal Panel that he did not find out that the appellant had received the two payments of compensation until the day of the Tribunal hearing in February 2015.
2. There is a reference in the report from Mrs Lee Coit-Riley prepared in August 2014, of the appellant receiving two payments of $7,000 each in the last 10 years. Each of those payments was for victim's compensation as a result of the appellant being assaulted. The Tribunal stated, incorrectly, that the payments were made two to three years ago. The Tribunal also recorded that the financial manager found out about those payments "after the appellant had spent the money."
3. Assuming that the payments were made in 2004 and 2007 and that the financial manager did not find out about them until the day of the hearing, do those mistakes justify giving leave for the appeal to go ahead? Applying the tests summarised in Collins v Urban [2014] NSWCATAP 17 the findings, though incorrect, were not made unreasonably or in an unorthodox way. They were based on an accurate statement in the report of Mrs Lee Coit-Riley. The only mistake the Tribunal made was about when those payments had been made.
4. Whether the compensation payments were made two to three years ago or ten years ago is irrelevant. The date when the financial manager found out about those payments is also irrelevant. The only relevance of those payments is how the appellant spent the money. The appellant did not provide any evidence about that. Because the Tribunal had to be positively satisfied that the appellant was capable of managing his financial affairs, we are not persuaded that the Tribunal's error would have made any difference to its decision.

Ground 3 - decision based on biased evidence from a psychiatrist

1. The appellant requested that a psychiatrist, Dr Puttman, provide him with a medical report to support his application for revocation of the financial management order. Dr Puttman wrote to the appellant's treating doctor on 30 September 2014 saying that she saw the appellant that day and that "he is a man with a long history of schizophrenia that has remained largely untreated due to insightlessness." The letter goes on to say that the appellant requested that she complete a report "to have his financial guardianship order revoked" but that she told him that she was "unable to provide him with such a report". Instead, Dr Puttman provided a copy of the notes of her consultation with the appellant.
2. The appellant expressed the view that Dr Puttman was not prepared to provide a report because she placed undue weight on the opinions of other psychiatrists who had diagnosed him with schizophrenia. The appellant does not believe he has schizophrenia and added that one Christian doctor agrees. The appellant believes that Dr Puttman is not a Christian and is therefore biased against him.
3. Dr Puttman is a psychiatrist and is therefore qualified to give an expert opinion to the Tribunal. There was no evidence before the Tribunal which contradicted her opinion that the appellant has a long history of schizophrenia. If the appellant had a report from a psychiatrist which contained a different diagnosis, he should have provided it to the Tribunal.
4. We are not persuaded that the Tribunal's reliance on Dr Puttman's letter or notes justifies the Appeal Panel granting leave for the appeal to proceed on the ground that Dr Puttman was biased.

Orders 1. Leave is refused for the appeal to proceed on grounds other than a question of law. 2. The appeal is dismissed.. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 July 2015