Colombini v De Berigny

Statutory framework

1. Section 29 of the NCAT Act gives the Tribunal power to make "interlocutory decisions" when determining a matter over which it has "general jurisdiction": NCAT Act, s 29(2)(a); NCAT Act, cl 3(2) of Sch 6. The Tribunal's general jurisdiction includes the exercise of the Tribunal's functions conferred by the Guardianship Act 1987 (NSW): NCAT Act, s 29(1)(a); NCAT Act, cl 3(1) of Sch 6. An "interlocutory decision" is defined by s 4 of the NCAT Act to include a decision concerning the issue of a summons (s 4(c)) and "any other interlocutory issue before the Tribunal" (s 4(i)). Other interlocutory issues may include setting aside a summons, excusing compliance with a summons, or granting access to documents or things produced in compliance with a summons.
2. Rule 41 of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) empowers the Registrar, at the direction of the President or a Division Head, to make certain interlocutory decisions on behalf of the Tribunal, including "setting aside a summons or excusing compliance with a summons in connection with proceedings" (NCAT Rules, r 41(h)) and "granting access to documents or things produced in compliance with a summons in proceedings" (NCAT Rules, r 41(i)).
3. Section 48(1) of the NCAT Act confers on the Registrar the power to issue a summons at the direction of the Tribunal or on the application of a party to the proceedings. The summons may require a person to attend the Tribunal and give evidence and/or to attend and produce documents or things: NCAT Act, s 48(3). The rules for the issue, service, and return of a summons are contained in r 34 of the NCAT Rules. The Tribunal's procedures regarding summonses are contained in NCAT Procedural Direction 2 (29 April 2021), issued by the President of NCAT under s 26 of the NCAT Act.

General principles

1. In exercising the power to make decisions about the issue, setting aside of summonses and refusal to permit access to documents produced under summons, NCAT and its predecessor Tribunals have consistently applied the common law principles developed in respect of subpoenas. (See, for example, Z v University of A [2001] NSWADT 110; Battenburg v Chief Executive Officer & Secretary, Union Club [2002] NSWADT 219; Danis v Commissioner of Police [2021] NSWCATAP 57)
2. In Colombini v De Berigny [2021] NSWSC 374, Ward CJ in Eq as her Honour then was, summarised the relevant principles applicable on an application to set aside a subpoena or to permit inspection to documents produced under subpoena (referred to in Rinehart v Rinehart [2018] NSWSC 1102 at [43]-[54]). At [126] Ward CJ explained that it must be shown (by reference to the particular case or issue) that there is a legitimate forensic purpose for the issue of a subpoena. As to what is a legitimate forensic purpose, Ward CJ said: "127 The relevant question in respect of each of the impugned subpoenas is whether the documents sought have 'a sufficient apparent connection to justify their production or inspection' (Portal Software at [24] per Brereton J, citing White v Tulloch (1995) 127 FLR 105; 19 Fam LR 696 at 708 per Fogarty, Kay and Hilton JJ). This has been expressed variously as being: (i) whether the documents called for could 'possibly throw light' on the issues in the case (see Trade Practices Commission v Arnotts Ltd (No 2) (1989) 88 ALR 90 at 103; [1989] FCA 340 per Beaumont J); (ii) whether it is 'on the cards' that the documents sought will materially assist on an identified issue (see, for example, Alister v R (1983) 50 ALR 41; [1984] HCA 85 at 46 per Gibbs CJ; R v Saleam (1989) 16 NSWLR 14 at 18 per Hunt J (with whom Carruthers J and Grove J agreed); Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536; [2008] NSWCCA 65 at [64]-[70] per Beazley AJA, as her Excellency then was (with whom James and Kirby JJ agreed)); or (iii) that 'it is likely the documentation will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely that the documentation will [materially assist]' (ICAP v Moebes at [30] per Nicholas J). Therefore, what is ultimately required is an assessment as to the relevance of the documents sought by reference to the issues in the proceedings (see Cosco Holdings Pty Ltd v Federal Commissioner of Taxation (Cth) (1997) 37 ATR 432; [1997] FCA 1504 at 439-440 per Spender J; Nicholls v Michael Wilson & Partners Ltd [2010] NSWCA 100 per Young JA). 128 Where there is no legitimate forensic purpose, in that sense, for the issue of a subpoena or notice to produce, then it may readily be seen to be a fishing expedition. As to what is meant by a 'fishing expedition', see Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250 where, at 254, it was said that: A 'fishing expedition', in the sense in which the phrase has been used in the law, means, as I understand it, that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not. If, however, there is material before the Court pointing to the probability that a party to litigation has in his possession documents tending to destroy his case or to support the case of his opponent and that privilege from inspection of such documents has been wrongly claimed, an application by that opponent to be allowed to inspect them cannot properly be described as a mere 'fishing expedition'. 129 Whether a party has cause to believe that particular documents exist is a relevant factor (in conjunction with the potential relevance of the documents sought and the breadth of the subpoena) in determining whether the subpoena constitutes a 'fishing expedition'."

Grounds for opposing access

1. The Solicitor submitted that the Tribunal should not permit the other parties access to the Summons material for the following reasons.
2. First, the grounds advanced by the SLHD for requesting the issue of the Summons are not a proper basis for granting access to the Summons material, namely: "The Applicant believes that [the Subject Person] is vulnerable to financial exploitation after concerns were raised by staff at another hospital (other than [the public hospital]) regarding [the Subject Person]'s income and assets being at risk. The SLHD seeks the production of the [Subject Person]'s bank records to substantiate or not, the concerns raised by staff at the other hospital."
3. The Solicitor submits that there is no direct evidence to support the claim made by SLHD that the Subject Person is vulnerable to financial exploitation. The "concerns" raised by "staff" at another hospital on which the SLHD relies are hearsay communications of dubious relevance. Furthermore, those "communications" have not been provided to the Subject Person.
4. It is apparent, contends the Solicitor, that the concerns reported to the public hospital relate to the Subject Person's carer (the Carer). It is notable, argues the Solicitor, that at the hearing of the application for a guardianship order on 13 January 2023, the SLHD effectively abandoned the allegations about the Carer's impropriety because of the absence of evidence to support that allegation.
5. It is inappropriate, contends the Solicitor, for the SLHD to now seek to reventilate those allegations by attempting to access the Subject Person's bank records in circumstances where: 1. the Tribunal made no adverse findings about the Carer: Reasons at [72]; 2. in respect of the allegation that NSW Police and the Ageing and Disability Commission had investigated the allegation that the Carer had financially exploited an elderly patient at another hospital, the Tribunal accepted the Carer's claim that neither agency had contacted her. The Tribunal noted that it had "no evidence regarding ongoing inquiries about this matter": Reasons at [42], [73]; 3. the Tribunal accepted the submission made for the Subject Person that in the past the type of arrangement between the Subject Person and the Carer was "not uncommon". Under that arrangement, the Carer lived with the Subject Person rent-free and "cared for the Subject Person in several respects": Reasons at [73].
6. Further, the Solicitor submits that it is unclear how the Subject Person's bank records could substantiate "concerns raised by staff at the Other Hospital". At best, those records could reveal deposits made into and withdrawals made from the Subject Person's bank account.
7. In addition, the Solicitor contends that the period covered by the Summons, 1 January 2017 to 23 January 2023, appears to extend beyond the period the carer has been involved with the Subject Person. Further, in considering whether to exercise the power to make a financial management order, the Tribunal is required to determine whether the Subject Person is currently not capable of managing his financial affairs, not whether in the past he was not capable of doing so.
8. The Solicitor asserts that the Summons is a fishing expedition because there is no evidence that the Subject Person is mismanaging his financial affairs. His affairs are relatively simple: he receives the age pension and owns the apartment where he now lives. Prior to filing the statement he prepared for these proceedings, there was no evidence of whether the Subject Person in fact was or was not managing his financial affairs appropriately. The SLHD is using the issue of the Summons to obtain material to support its application.
9. Finally, the Summons "is outside the scope" of the principles stated in s 4 of the Guardianship Act (the section 4 principles) because: 1. The Summons fails to give paramount consideration to the welfare and interests of the Subject Person (Guardianship Act, s 4(a)) but rather seeks to enquire into the activities of the Carer in circumstances where the only material to support a finding that the Subject Person is subject to financial exploitation by the Carer are allegations made by a patient at another hospital which are unsubstantiated and unparticularised. The Tribunal has found that the Carer is not exploiting the Subject Person: Reasons at [8], [10]. 2. The Summons does not encourage the Subject Person's freedom of decision-making and freedom of action (Guardianship Act, s 4(b)). Rather, through the Summons, the SLDH is attempting to find evidence currently not in its possession in support of its application to impose a financial management order on the Subject Person. If that order were made, the Subject Person would lose the freedom to manage his financial affairs. 3. Permitting access to the Summons material would be contrary to the views of the Subject Person (Guardianship Act, s 4(d)) who opposes the other parties to the proceedings being given access to his bank records.

Consideration

1. The question to be decided is whether the Summons material has "sufficient apparent connection" to the issues in the proceedings to justify access being given to the SLHD and the other parties. It is sufficient that the material could "possibly throw light" on the issues in the proceedings in respect of the SLHD's application for a financial management order for the Subject Person, or that it appears to be "on the cards" that the material will do so.
2. As a first step in answering that question, it is necessary to identify the issues in the proceedings. In proceedings before the Guardianship Division, unless ordered to do so by the Tribunal, parties are not required to file pleadings and particulars. The issues are determined by reference to the source of the Tribunal's power to make the orders sought, in this case a financial management order, together with the material filed by the parties and any material obtained by the Tribunal in the exercise of its power "to inquire into and inform itself on any matter in such manner as it thinks fit": NCAT Act, s 38(2).
3. Section 25G of the Guardianship Act gives the Tribunal power to make a financial management order. To exercise that power the Tribunal must be satisfied of each of the three matters listed in para (a), (b) and (c): 25G Grounds for making financial management order 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.
4. In the initiating application seeking a financial management order, in answer to the question "why are you asking for a financial manager to be appointed?" the social worker who prepared that application wrote "Please see attached reports". In reasons given for the stated belief that "this matter is urgent because the person is at risk?", the social worker wrote: "Concerns have been raised by staff at another hospital regarding [the subject person]'s income and assets being at risk. Please see attached Social Work report for further details."
5. The attached reports filed in support of the initiating application include: 1. a report prepared by Dr Z, Registrar, Geriatric Medicine, at the public hospital, dated 12 December 2022. Dr Z stated: 1. "During his presentations over the years there have been a number of documented concerns about many acquaintances involved in [the Subject Person's] life who may have taken advantage of this vulnerable man." 2. "There are longstanding well-documented significant concerns regarding [the Subject Person]'s vulnerability and inconsistency in his informal supports." 3. In 2019 the Subject Person was referred by his GP for a Capacity assessment. That referral was apparently prompted by a report made about a person who had lived on and off with the Subject Person and was involved in his care. 4. In Dr Z's opinion, the Subject Person does not have capacity to manage his finances. From at least 2015, the Subject Person has been deemed to lack capacity to make various decisions. 1. A report prepared by a hospital physiotherapist, dated 9 December 2022, stated to have been taken after "discussion with patient who is in the bed opposite [the Subject Person]". The physiotherapist wrote that, unprompted, the patient told her: 1. he felt uncomfortable about the relationship between the Subject Person and the woman who visits him daily 2. he felt the woman was manipulative and bossy 3. he heard the women say that she and another male (who the Subject Person does not approve of) will be looking after the Subject Person on discharge 4. he is concerned the Subject Person is being taken advantage of. 1. A report dated 5 December 2022 was prepared by a hospital social worker in support of the guardianship and financial management application. Referring to the Subject Person's series of admissions to the public hospital since 2006, the social worker detailed reports of concerns about the Subject Person made during those admissions including the Subject Person being "prone to financial exploitation" (2015). With respect to the current admission, the social worker reported that a member of staff at another hospital contacted her and said the Carer was also the carer for a patient at that hospital and hospital staff were concerned that the Carer was financially exploiting that patient. "There is an active police investigation into this matter. The Ageing and Disability Commission are also aware this matter".
6. A report dated 9 September 2022 prepared by Clinical Neuropsychologist, Dr Y. Dr Y reported: 1. the Subject Person's performances on cognitive screening measures have consistently revealed significantly impaired cognition since 2015 and the "clinical picture that remains is consistent with dementia of mixed vascular and Alzheimer's aetiology". 2. An assessment conducted of the Subject Person on 9 December 2002, revealed "severe cognitive impairments". During that assessment, the Subject Person demonstrated "a lack of insight into his medical history, level of cognitive functioning, everyday function abilities, and current care needs". 3. During the 9 December 2002 assessment when questioned about his finances, the Subject Person insisted that he manages his financial affairs independently but could not indicate how he does so and refused to provide any information about his income and expenses. the Subject Person repeatedly said, "if I need help and assistance, I'll ask my GP and solicitor". However, he could not name either one (personally).
7. From this material it would appear that the issues in the proceedings include: whether the Subject Person is not capable of managing his financial affairs, whether there is a need for another person to manage those affairs on behalf of the Subject Person, whether it is in the Subject Person's best interests that a financial management order be made, whether the Subject Person is, or has been, subject to financial exploitation by another person. (In these reasons I will refer to those matters as "the identified issues".)
8. The authorities make clear that the SLHD does not need to establish that the produced documents will definitely advance its case in respect of the identified issues or be admissible in evidence. The issue to be decided is whether there is apparent relevance between the produced material and the identified issues.
9. It cannot reasonably be argued having regard to the following matters that the produced material fails to meet the "relatively low threshold of apparent relevance": Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145, Bell P in at [71]: 1. over an extended period, the SLHD has received reports that the Subject Person may have been subject to financial exploitation; 2. there is medical evidence which, if accepted, may support a finding that the Subject Person is incapable of managing his affairs; 3. when questioned by a Clinical Neuropsychologist about the claim made in these proceedings that he manages his own finances, the Subject Person was unable to explain how he managed his finances.
10. The submissions made for the Subject Person opposing access focus on the report to the social worker made about the allegations said to have been made by a patient at another hospital about the Carer. This was one of two reasons given by the SLHD in support of its request for the issue of the Summons (see [9] above). The first of these reasons was that the material is likely to be relevant to the assessment of the Subject Person's claim that he is capable of managing his finances. Whether, as argued for the Subject Person, the SLHD had no knowledge that the Subject Person held accounts with the bank has no bearing on whether those records have apparent relevance to the identified issues. I am satisfied that it is likely that the Summons material will have apparent relevance to the issue of whether the Subject Person is capable of managing his finances.
11. The Subject Person is correct in stating that currently there is no direct evidence supporting the allegation that the Carer has financially exploited a patient at another hospital. Nor is there any direct evidence that the Subject Person is, or has been, subject to financial exploitation by the Carer. Nonetheless, there is some material which, if accepted, might support an inference being drawn that the Subject Person has been the subject of financial exploitation. That includes the history of reports of concern made during the Subject Person's multiple admissions to the public hospital. It cannot be said that there is no "reasonable basis beyond speculation" that the produced material will materially assist to establish the likelihood of the truth of those reports.
12. With respect to the temporal scope of the records requested by the Summons, January 2017 to January 2023, I reject the submission that the Subject Person's bank records dating back to 2017 lack apparent relevance to the identified issues. As the Subject Person points out, s 25G of the Guardianship Act, directs attention to whether the Subject Person is currently incapable of managing his financial affairs and whether currently there is a need for another person to manage those affairs on his behalf. However, in circumstances where there is evidence of the Subject Person having impaired cognitive capacity since at least 2015 and reports of possible financial exploitation since that time, his bank records over the past six years are likely to have some apparent relevance to the identified issues.
13. Finally, I reject the argument that granting access to the Summons material will offend the section 4 principles. While relevant to whether the power to make a financial management order should be exercised, the principles that the Subject Person's autonomy should be "restricted as little as possible" and that he should be encouraged, as far as possible, to live a normal life in the community (ss 4(b), 4(c) of the Guardianship Act), have limited relevance in determining whether access to the Summons material should be permitted. While the section 4 principles require that I take into account the Subject Person's opposition to permitting access to the Summons material, they also require that I give paramount consideration to the Subject Person's welfare and interests (s 4(a) of the Guardianship Act). In circumstances where there is no reliable independent evidence that the Subject Person is or is not being subject to financial exploitation, where there is a history of reported concerns about the Subject Person being subject to financial exploitation, where there is evidence of impaired capacity which, if accepted, means that the Subject Person may be vulnerable to financial exploitation, consideration of his welfare and interests favour access being given to the Summons material.
14. The Summons material has apparent relevance to the identified issues. There is a legitimate forensic purpose in issuing the Summons and granting access to the produced material. For these reasons I grant access to the Summons material.

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: 03 April 2023