DGM v NSW Trustee and Guardian

NCAT Appeal Panel|2017-07-21

ales Jurisdiction: Not applicable Citation: Not applicable Date of Decision: 9 February 2017 Before: B Hughes, S Thompson and M Coleman, Members

Introduction

On 20 October 1999 the Mental Health Review Tribunal (MHRT) made a management order (Management Order) under s 19 of the Protected Estates Act 1983 (PE Act) in respect of the estate of the appellant, then known as [a former name].
The PE Act has since been repealed and replaced by the NSW Trustee and Guardian Act 2009 (TG Act).
On 24 October 2016, the appellant made an application to the MHRT pursuant to s 88 of the TG Act for the revocation of the Management Order. The application was heard and determined by the MHRT on 9 February 2017. The MHRT determined that the Management Order should not be revoked. The MHRT gave brief written reasons in the form of a document entitled "Determination of the Tribunal" which was dated 9 February 2017 (decision).
The appellant appeals the decision by way of an external appeal to the Tribunal (NCAT).

Notice of external appeal, reply and submissions

On 20 March 2017 the appellant filed an external appeal dated 15 March 2017.
The external appeal stated that notice of the decision which was the subject of the appeal was received on 17 February 2017. Consequently, the appeal was required to be lodged within 28 days from 17 February 2017, namely by 15 March 2017: see r 25(4)(c) of the Civil and Administrative Tribunal Rules, 2014 (NCAT Rules).
The appeal had been lodged in circumstances where it was, apparently, the first appeal from a decision of the MHRT to the Tribunal following the establishment of the Tribunal under the Civil and Administrative Tribunal Act 2013 (NCAT Act). There was correspondence between the appellant and the Tribunal from the middle of February 2017 seeking information concerning the lodgement of the appeal. In consequence of this correspondence, the appellant lodged the external appeal which was posted by her Queensland lawyer to the Tribunal on 15 March 2017, the documents being received on 20 March 2007.
In her appeal, the appellant stated under the heading "Late Appeals" that the appeal was lodged in time. Therefore leave was not sought. We note that the respondent did not challenge the assertion that the appeal was lodged in time.
In the circumstances of this case, and having regard to the fact the appeal was only 5 days late and there is no apparent prejudice to the respondent, an order should be made extending the time for lodging the external appeal up until 20 March 2017.
The notice of external appeal was subsequently amended. By that notice the appellant sought leave to appeal as necessary. The grounds of appeal were as follows: 1. Failure to afford procedural fairness, such failure constituted by: 1. a failure to provide reasons for the decision in 1999 to make the original management order; 2. a failure by the respondent to provide the basis for opposition to the appellant's application prior to the hearing in 2017; 3. a failure by the MHRT to provide adequate reasons for its decision of 9 February 2017. 1. Insufficient or no evidence to justify the decision made. 2. The failure of the MHRT to take account of the principles set out in the TG Act and relevant decisions of the MHRT. 3. The decision was an exercise of power in a manner such that no reasonable tribunal could have made such a decision. 4. The MHRT took account of irrelevant considerations and failed to properly take account of irrelevant considerations. 5. The reasons given for the decision were contrary to the evidence at the hearing and not capable of rational justification.
The respondent filed a Reply to Appeal dated 7 July 2017 in the following terms: The NSW Trustee & Guardian provides the attached Report on the Financial Management for [DGM], by NSW Trustee & Guardian to assist the Tribunal. Although listed as the respondent in this matter, the NSW Trustee & Guardian does not hold a view on the decision made by the Mental Health Review Tribunal for [DGM] on 9 February 2017. The NSW Trustee & Guardian does not wish to present a case or to make submissions in relation to the matter.
The Reply to Appeal had attached to it a report from the respondent signed by Mr Michael Keogh dated 7 July 2017 setting out various matters concerning the administration of the appellant's affairs and the Estate of her late husband. Previously, the respondent had also filed in the appeal a report dated 23 June 2017 prepared by Dana Skopelja. This report also dealt with matters concerning the administration of the appellant's estate.
The Tribunal made directions for the parties to file and exchange submissions. The appellant filed evidence and written submissions under cover of a letter dated 30 June 2017. The appellant's material included a typed copy of the transcript of the hearing before the MHRT on 9 February 2017.
The respondent's written submissions were limited to those documents identified above.
At the hearing of the appeal Mr Hannay, Solicitor, appeared by telephone for the appellant. Mr Keogh appeared for the respondent.
The appellant's material relied upon for the purpose of the appeal included evidence from the original hearing. The bundle provided consisted of Annexures A-D. This material consisted of: 1. the management order made under the PE Act on 20 October 1999, 2. the CTO made on 25 January 2016 (including the treatment plan), 3. various financial records and correspondence concerning the financial affairs of the appellant and her late husband's Estate, 4. a letter from the Hostel where the appellant resides and pays rent, 5. a statement from a social worker, Ms Simone Dewar dated 11 November 2016 concerning treatment and assistance she was receiving in Queensland, 6. a transcript of the hearing before the MHRT on 9 February 2017, and 7. other documents provided in evidence at the MHRT hearing.
The appellant's submissions can be summarised as follows: 1. The MHRT was required to have regard to the principle set out in s 39 of the TG Act in deciding whether or not the financial management order should be revoked. 2. The failure of the respondent to give notice of any issues which it wished to raise in opposition to the appellant's application to revoke the financial management order "gave rise to an effect of "ambush" of the appellant in the Tribunal hearing on 9 February 2017". 3. There was a failure to give reasons in respect of the original order made in 1999 following requests made in October and November 2016. [At this point we should indicate that we do not propose to deal with this ground further as it relates to an obligation to give reasons in connection with a decision made in 1999, which is not the subject of the present appeal. There is an issue as to whether or not NCAT is able to hear an appeal in connection with the order made under earlier legislation at a time when NCAT had not been established. Further, and in any event, such an appeal could not be made without amendment to the notice of external appeal and without leave to appeal out of time. No application has been made to seek such leave.] 1. The second procedural fairness point is that, at the hearing by the MHRT on 9 February 2017, evidence was given by Mr Denny on behalf of the respondent without notice to the appellant. 2. The third procedural fairness point was that the MHRT raised an issue concerning the appellant's entitlement to legal representation at the hearing, rather than at an earlier directions hearing, asked questions of Mr Denny concerning this matter and took up considerable hearing time on an irrelevant consideration. 3. The fourth procedural fairness point was that, in making its decision, the MHRT failed to consider the facts and submissions made by the appellant. 4. The fifth procedural fairness point was that having allowed Mr Denny (who was not the case manager for the appellant nor the responsible officer dealing with the Estate of the appellant's late husband) to provide evidence at the hearing, the MHRT did not provide an opportunity for the appellant to respond to that evidence. 5. The MHRT was in error in concluding "there was no evidence that there is a negative impact from the (financial management order)". Rather, there was evidence from the appellant found at pages 4, 13 and 14 of the transcript which directly contradicts this conclusion. 6. As to the conclusion that the appellant "still requests cash advances", this evidence relates to events which occurred in June 2015, not 2017 when the hearing took place. In fact, in recent times, namely the 12 months prior to the hearing, the appellant had "sought no extra funds and survived in Cairns by accommodating, feeding and clothing herself solely on her widow's pension". 7. There was no evidence that the appellant was "impulsive". The sale of her caravan demonstrated a considered approach, the sale proceeds being "invested conservatively in the bank ", although those funds were subsequently "taken back by the NSW Trustee and Guardian". 8. The MHRT failed to have regard to the evidence at the hearing on 9 February 2017 that the Westpac bank account had been "set up in anticipation of an Order of Revocation of the Financial Management Order", it was an account which did not have large sums of money transacted through it and that it was an account into which the appellant paid her pension, money which she was specifically allowed to manage as a result of the authorisation(s) issued by the NSW Trustee and Guardian under s 71(2) of the TG Act. 9. In relation to the finding that the appellant has not demonstrated a capacity to manage the administration issues associated with her husband's Estate in the United Kingdom, the appellant said this conclusion was not based on any relevant facts. Further, the existing order prevented her from undertaking such tasks. 10. Finally, the appellant said the MHRT: 1. Took account of irrelevant considerations including receiving opinion evidence from Mr Denny which he was not qualified to provide and/or relying on evidence which, having regard to its content, could have no probative value; and 2. failed to take account of relevant considerations including the provisions of s 39 of the TG Act, the evidence of Ms Dewar and the cost of continuation of the Financial Management Order.
The appellant's representative made oral submissions to like effect.
Included in her submissions was a proposition that the MHRT was, in determining proceedings before it, bound by any decision which it placed on its internet site as general information for prospective parties. This submission is plainly wrong and does not need further comment.
During the course of the hearing of the appeal, the Appeal Panel raised with the appellant's representative the issue of whether or not an adjournment had been applied for following the evidence from Mr Denny. It was apparent from the submissions made that no adjournment was requested, the appellant's submission being that she was "cut short at the hearing" and also that she wanted the matter resolved. It was also apparent the appellant's representative had been permitted to ask questions of Mr Denny about his evidence.
Despite not filing any written submissions, Mr Keogh on behalf of the respondent, was given leave to provide oral submissions in reply at the hearing of the appeal.
The respondent maintained its position that it did not wish to make submissions concerning the correctness of the MHRT decision. The respondent accepted as correct the transcript regarding the evidence of Mr Denny. The respondent also accepted that the finding that the appellant had set up a bank account without notice to the respondent was not evidence that she could not manage her affairs in accordance with s88(1)(a) or (b) of the TG Act.
However, the respondent did submit that the evidence of Mr Denny was not contradictory to section 4 of the respondent's report provided to the Appeal Panel in this appeal. The respondent submitted that Mr Denny had access to the respondent's files and had attended various meetings with the appellant over time.
In reply to these submissions, the appellant made clear she was not challenging the honesty of Mr Denny. Rather, the complaint concerned the failure to be afforded an opportunity to respond.
A final issue was raised by the Appeal Panel about which the parties were given leave to provide written submissions following the hearing of the appeal. That issue was whether or not the Appeal Panel had jurisdiction under s 50 of the TG Act to hear and determine an appeal against a decision made by the MHRT under s 80 of that Act. Submissions were only received from the appellant.
The appellant said that the Tribunal does have jurisdiction for the following reasons: 1. The phrasing of ss 49 and 50 of the TG Act, which deals respectively with appeals from a decision of the MHRT to the Supreme Court of New South Wales (Supreme Court) and NCAT, is the same. 2. Section 85 of the TG Act provides for termination of any management if a management order is revoked. Section 86 provides application may be made to the Supreme Court to revoke a management order. Alternatively, an application may be made to the MHRT under s 88. 3. The MHRT decision in the present case had a notation that a person may appeal to the Supreme Court under s 49 of the TG Act. 4. A determination made under s 88 not to revoke an existing management order is itself "an order by the MHRT that the estate of a person be subject to management under this Act". Consequently, there is a right of appeal to NCAT pursuant to s 50 of the TG Act. Clearly the determination is, itself, an order of the MHRT which has the effect of subjecting the appellant's financial affairs to management under the TG Act. That is, the practical effect of the order is to require the continuation of a management order. 5. Consequently, the appellant submits that the Appeal Panel is authorised to determine the appeal, re-exercise the powers conferred upon the MHRT and, having regard to the provisions of s39(a)(b) and (d) of the TG Act revoke the management order.

Consideration

This appeal is in respect of a decision of the MHRT pursuant to s 50 of the TG Act.
The circumstances in which an appeal can be made from a decision of the MHRT to NCAT is regulated by s 50 of the TG Act which provides: 50 Appeals to NCAT against estate management orders made by MHRT (cf PE Act, s 21A) (1) An appeal may be made by the following persons to the Civil and Administrative Tribunal against an order by the MHRT that the estate of a person be subject to management under this Act: (a) the person to whom the order relates, or (b) any other person who was a party to the proceedings in which the order was made. Note. An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013. (2) An appeal may be made: (a) as of right, on any question of law, or (b) by leave of the Tribunal, on any other grounds.
Consequently, where there is an entitlement to appeal under s 50 of the Act, the appeal is as of right on any question of law, and otherwise by leave of the Tribunal.
The MHRT is an external decision-maker because it is a decision-maker who is external to NCAT: see definition- s 4 NCAT Act. Consequently, appeals pursuant to s 50 of the TG Act are external appeals to the Tribunal because the decision is an appealable external decision over which NCAT has external appeal jurisdiction: see s 31 NCAT Act.
Further, an appeal under s 50 of the Act is a designated external appeal. Accordingly, NCAT is to be constituted as the Appeal Panel in determining such an appeal: see ss 27(1)(a) and 27(6)(b) of the NCAT Act.
An external appeal to NCAT is to be determined in accordance with the provisions of s 79 of the NCAT Act. This section provides: 79 Making and determination of external appeals (1) An external appeal may be made to the Tribunal by a person entitled to do so under enabling legislation on such a basis or grounds, or in such circumstances, as may be provided by that legislation. (2) In determining an external appeal, the Tribunal may: (a) in the case of enabling legislation that specifies the orders that may be made by the Tribunal on the appeal - make any of those orders, or (b) in any other case - make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following: (i) the appeal to be allowed or dismissed, (ii) the decision under appeal to be confirmed, affirmed or varied, (iii) the decision under appeal to be quashed or set aside, (iv) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (v) the whole or any part of the case to be reconsidered by the decision-maker whose decision is under appeal, either with or without further evidence, in accordance with the directions of the Tribunal.
As there is no specification in the TG Act (the enabling legislation) concerning the powers of the Appeal Panel to dispose of the appeal, s79(2)(b) of the NCAT Act defines the powers of the Appeal Panel in determining this case.
The decision which is the subject of this appeal was made under s 88 of the TG Act. In that decision, the Tribunal refused an application of the appellant to revoke the management order.
The appellant requested reasons for decision in an email from her solicitor to the MHRT dated 15 February 2017 (part of Annexure B of the appellant bundle). That was provided by the MHRT by email from Ms White dated 17 February 2017 (also part of Annexure B) which said: I have also attached a copy of the determination of the Tribunal which outlines the reason for the decision at the hearing last week on the order.
The attached document was headed "Determination of Tribunal" and is the document attached to the notice of external appeal. That document, entitled "Determination of Tribunal" contained hand written reasons in the following terms: REASONS OF MEMBERS: Not satisfied that it is in [DGM's] best interests as there is no evidence that there is a negative impact from the order-she is managing her pension however she still request cash advances-this is a period of immense change for [DGM] who has disengaged with mental health. She is impulsive when has access to large sums of money, she has entered into an agreement to sell a caravan despite being aware she was unable to do so. Set up a bank account without notifying NSW Trustee. She has not demonstrated the capacity to manage the Probate and administration issues associated with a husband's Estate in the United Kingdom. She is not capable of managing her financial affairs.
No other written reasons were apparently given.
The present appeal raises three issues: 1. Does the right of appeal to the Tribunal under s 50 of the Act include a right of appeal in respect of a refusal to revoke a management order originally made under s 19 of the PE Act? 2. If yes, was the MHRT in error in refusing the application to revoke the management order and/or was there a failure to afford procedural fairness to the appellant? 3. If yes, what orders should be made in this appeal?

Does the right of appeal to the Tribunal under s 50 of the Act include a right of appeal in respect of a refusal to revoke a management order originally made under s 19 of the PE Act?

As stated above, the management order, which was the subject of the application for revocation, was made under s 19 of the PE Act on 20 October 1999.
The PE Act has subsequently been repealed and replaced by the TG Act. However, pursuant to Cl 4(1)(b) of Division 2 of Part 2 of Schedule 1- Savings, transitional and other provisions of the TG Act, the order made under s 19 of the PE Act is taken to have been made under s 46 of the TG Act. Clause 4(1)(b) provides: (b) subject to paragraph (a), any act, matter or thing done or omitted under the provisions of the former Acts for which there is a corresponding provision in this Act (including anything arising under paragraph (a)) is taken to have been done or omitted under the corresponding provisions of this Act.
That is, an order made by the MHRT under s 19 of the PE Act, is taken to have been made by the MHRT under s 46 of the TG Act.
Consequently, the appellant was entitled to apply to the MHRT for revocation of that order pursuant to s 88(1) of the TG Act. That section provides: (1) The MHRT, on application by a protected person who is (or who was, but has ceased to be, a patient, may revoke the order that the estate of the person be subject to management under this Act, if it is satisfied that: (a) the protected person is capable of managing his or her affairs, or (b) the revocation is in the best interests of the protected person.
The question is whether an order dismissing an application made under s 88 of the TG Act is "an order by the MHRT that the estate of the person be subject to management under (the TG Act)" within the meaning of s 50 of the TG Act because s 88 of the TG Act, and Part 4.6 in which that section is found, do not otherwise provide for a right of appeal.
On one view, the dismissal of the application to revoke a management order is not an order that the estate of a person be subject to management under the TG Act. Rather, in the present case, the management order made in 1999 is the order by which the estate of the appellant was made subject to management and the dismissal of the application under s 88 does not affect the continuing operation of the original order.
However, this construction would mean that a protected person would have no right to appeal an order to dismiss an application to revoke or a decision to refuse to revoke a management order.
In our view, this construction of s 50 of the TG Act is not correct.
Rather, both a decision to make a management order and a decision not to revoke a management order under s 88 are each orders which fall within the expression of "an order .. that the estate of a person be subject to management under this Act". Our reasons are as follows.
First, a decision made under s 88 of the TG Act is a different decision from that made under s 46 (the equivalent section to s 19 of the PG Act by which the 1999 management order was made). The differences are both as to the point in time when the decision is made and the considerations relevant to exercising a power under each of ss 46 and 88 of the TG Act.
Section 46 provides: 46 Other orders by MHRT (cf PE Act, s 19) (1) The MHRT may, on application, consider a patient's capability to manage his or her affairs and, if satisfied that the patient is not capable of managing his or her affairs, must order that the estate of the person be subject to management under this Act.
As s 46(1) makes clear, an order must be made by the MHRT if satisfied that a patient is not capable of managing his or her affairs. This provision was in similar terms to s 19 of the PE Act.
On the other hand, s 88 of the TG Act provides for revocation of an existing management order as follows: 88 Revocation of order by MHRT (1) The MHRT, on application by a protected person who is (or who was, but has ceased to be) a patient, may revoke the order that the estate of the person be subject to management under this Act, if it is satisfied that: (a) the protected person is capable of managing his or her affairs, or (b) the revocation is in the best interests of the protected person.
That is, an order may be revoked where the MHRT is satisfied the protected person is capable of managing his or her affairs or the revocation is in the best interests of the protected person.
Where an order for revocation is made, s 85 of the TG Act provides that the "management of the estate of the managed person under (the TG Act) is terminated".
While there is a discretion to be exercised as to whether or not an order for revocation should be made, an order to revoke can be made in circumstances where it is in the best interests of the protected person to do so, whether or not the protected person's is capable of managing his or hers own affairs. That is, unlike s 46, the MHRT is not required to place the estate of a person under management even where the person is not relevantly capable of managing their own affairs.
It follows that an order to revoke and thereby terminate a management order or to dismiss and thereby continue management of a protected person's estate is a different decision to that being made under s 46 of the TG Act.
Further and more significantly, the consequence of making an order for dismissal is that the estate of the protected person will continue to "be subject to management under the (TG) Act" but on the basis of considerations different to those on which any original order was made.
Secondly, while the power to make orders under s 88 is found in Part 4.6 of the TG Act, properly understood, this is a power to make orders in connection with jurisdiction conferred on the MHRT and is part of its functions to make management orders under Part 4.3 of the TG Act.
Part 4.3 relates to orders for the management of the affairs of patients. Such orders can be made and reviewed by the MHRT in various circumstances; see Division 1 ss 44, 45, 46, 47 and 48 of the TG Act. Also, Division 2 of this part provides for applications to be made by patients to the NSW Trustee and Guardian, a matter not presently relevant. Patients are defined in the Mental Health Act, 2007. It is in this Part that s 46 (the power to make a management order by the MHRT) and s 50 (the right to appeal an order of the MHRT is found.
Separately, the TG Act provides the Supreme Court with power to make management orders in the following circumstances: 1. Part 4.2 enables the Supreme Court of New South Wales to make management orders, whether or not a person is a patient, in circumstances where a person is incapable of managing his or her affairs; 2. Part 4.4 enables the Supreme Court of New South Wales to make management orders for the estates of missing persons.
In all cases, the power to revoke orders made under Parts 4.2, 4.3 and 4.4 respectively is found in the general provisions of Part 4.6- Suspension or termination of management. In this regard Division 1 of Part 4.6 contains the following sections: 1. Section 85, as referred to above, provides for termination of the management of an estate if an order for revocation is made; 2. Section 86 provides for the revocation of declarations and orders made by the Supreme Court under Part 4.2 in respect of a person incapable of managing his or her affairs; 3. Section 87 provides for the Supreme Court to revoke any declaration and order for management made in connection with a missing person under Part 4.4; and 4. Section 88 provides for revocation of an order by the MHRT under Part 4.3. In passing we note this power extends to revoking an order even when the patient has ceased to be a patient.
Division 2 of Part 4.6 separately provides for certification by the NSW Trustee and Guardian "that the management of the estate of the protected person or patient by the NSW Trustee is terminated" if satisfied "the person is capable of managing his or her own affairs". In this case, "any order… ceases to have effect". In this regard there is power to refer to the Supreme Court, MHRT or NCAT (in the case of a person under guardianship) the question of capability. Where there is a referral to the MHRT, s 46 (3) of the TG Act enables the MHRT to make a further decision.
While Part 4.6 is entitled "Suspension or termination of management", it does not confer independent jurisdiction on either the Supreme Court or MHRT. Rather, it permits revocation of orders previously made by the Supreme Court or MHRT under Parts 4.2, 4.3 or 4.4 as the case might be.
As such, properly construed, s 88 provides an order making power which can be exercised by the MHRT as part of its functions under Part 4.3 of the TG Act.
Thirdly, s 51 requires that, in making an order that the estate of a person be subject to management under the TG Act, the MHRT must provide a party (including the protected person) with "formal written reasons for the order". Section 51 (2) provides: In providing those reasons, the MHRT must also advise the party concerned that an appeal may be made to the Civil and Administrative Tribunal against the order under this Part.
As the decision concerning revocation is an order made by the MHRT in the exercise of its powers to make management orders in respect of the estates of patients pursuant to Part 4.3, this subsection supports an interpretation of s 50 of the TG Act that such decisions may be appealed to NCAT.
Fourthly, the power of the MHRT to make management orders for patients is, as explained above, found in Part 4.3 of the TG Act.
Once an order is made, a party has two paths of appeal. One is to the Supreme Court pursuant to s 49 of the TG Act. The other is to NCAT pursuant to s 50 of the TG Act. However, the rights are exclusive in that: 1. there is no right of appeal to NCAT if an appeal has been made to the Supreme Court unless the appeal to the court is withdrawn with approval of the court for the purpose of enabling NCAT to deal with the matter: see s 50 (3); and 2. there is no appeal to the Supreme Court under s 49 of the TG Act if a person has appealed to NCAT unless the appeal is withdrawn with the approval of NCAT for the purpose of enabling the Court to deal with the matter: see s 49 (3) of the TG Act.
The entitlement to appeal is expressed in slightly different terms for each of s 49 and s 50.
In respect of appeals to the Supreme Court, s 49(1) provides: An appeal may be made to the Supreme Court by a person who is subject to an order made by the MHRT that the estate of the person be subject to management under this Act.
Such an appeal is by way of a new hearing and fresh evidence or evidence in addition to or in substitution for the evidence in relation to which the order was made may be given in the appeal: s 49 (2). The powers of the Supreme Court are to revoke or confirm the order appealed: see s 49(4).
This language is consistent with the Supreme Court, at least, having power to resolve an appeal in relation to whether a management order should be revoked.
In respect of appeals to NCAT, 1. Section 50(1) of the TG Act provides an appeal may be made by the specified persons "against an order by the MHRT that the estate of a person be subject to management under this Act"; and 2. Section 50(2) provides that there is a right of appeal in respect of questions of law or with leave on any other ground.
Significantly, the appeal is not by way of a new hearing. Unlike internal appeals to NCAT under internal appeal jurisdiction or appeals to the Supreme Court under the TG Act, no provision is made for the matter to proceed as a new hearing nor for a party to adduce fresh evidence: cf s 80(3) of the NCAT Act and s 49(2)(b) of the TG Act.
Rather, in determining the appeal, NCAT has different order making powers to those of the Supreme Court being those powers provided by s79(2)(b) of the NCAT Act (above). This includes power to vary or set aside orders, substitute another order or remit the proceedings for rehearing with or without new evidence.
However, the nature of the appeal and the scope of powers to determine appeals to NCAT under s 50 are consistent with NCAT being authorised to resolve an appeal in respect of an order dismissing an application to revoke a management order.
Lastly, Chapter 4 concerns "Management functions relating to persons incapable of managing their affairs". The general principles to be applied are set out in s 39 of the TG Act. As the introduction to that section says, "(i)t is the duty of everyone exercising functions under this Chapter with respect to protected persons or patients to observe the … principles" set out in subparagraph (a)-(g). Those principles include that "the welfare and interests of (protected persons or patients) should be given paramount consideration".
Section 40 of the TG Act provides: An order may be made under this Chapter for the management of the whole or part of the estate of a person.
As explained above, the jurisdiction of the MHRT to make such orders that a patient's estate be subject to management under the TG Act is conferred by Part 4.3. Orders can be made under ss 44, 45, 46, 47 and 48 of the TG Act. These orders may be appealed to either the Supreme Court or NCAT.
It would be incongruous that the legislature intended that an order dismissing an application under s 88, in effect making an order for the continuing management of the estate of a patient, could not also be appealed. It could not have been the legislature's intention that there was no right of appeal from such an order whatsoever when there is a right of appeal from an original order under Part 4.3 by which a patient's estate is committed to management.
For these reasons, we are satisfied the Appeal Panel has jurisdiction to hear and determine an appeal against an application dismissing an application to revoke a management order.

If yes, was the MHRT in error in refusing the application to revoke the management order?

Pursuant to s 88 of the TG Act, the MHRT was required to consider two matters in relation to whether or not the management order should be revoked. These were: 1. whether the appellant was capable of managing her affairs; and 2. whether revocation was in the best interests of the appellant.
In relation to the question of best interests of the appellant, the MHRT concluded "there is no evidence that there is a negative impact from the order".
The appellant says this conclusion was wrong.
We agree with this submission.
As recorded in the transcript provided in this appeal (Annexure D of the appeal documents), the appellant gave the following evidence at T4: Question: Can you tell the Tribunal what you think the effect might be on your health if the order of the Tribunal that the Financial Management Order continued to exist? Appellant: Well the lowering of self-esteem. I feel, I probably would feel very disappointed because my ability is not recognised and causing me to worry as I said I am very clever financially and my mathematics isn't too bad but it definitely would be a worry for me and I feel that my self-esteem has come at a nul? (sic) and I need to not worry so that I can rest and look after my own finances as I am very capable without any further stress.
At T 14 the appellant then said: In regards to the Financial Management Order made in May 1999, it humiliated and demoralised me. I am now capable of controlling my financial affairs and to be given an opportunity and I think it would be in my best interests to manage my finances. My mental health is greatly improved and I feel well and I support (sic) opportunity to manage my own finances. I have two bank accounts, one with the Commonwealth Bank and also one with Westpac and personal banker Holly Green to help me deal with my money and looking forward to opening an investment account on term deposit, with Westpac bank so my money can earn lots of interests and to leave my money there for a long time and Holly Green can give me the rest of my money. Holly said yes she would be pleased to help me with my bank account. Thank you Holly Green and also I make good sound decisions and I am doing very well. I think personally that my sense of dignity and self-esteem have, and will improve in regards. The Financial Management Order caused me personally, considerable distress and anxiety. Lifting the Order would be in my best interests and I'm sure my worries will be over. I take responsibility for my recovery with no loss of dignity even contained or calculated (sic) and I am very well thank you Mental Health Review Tribunal.
Other evidence included a statement from the appellant dated 3 February 2017, part of the bundle of documents being Annexure B in the appeal.
There is no evidence to which we have been referred that contradicts this evidence about the negative impact the management order has upon the appellant nor did the MHRT identify such evidence. No reasons were otherwise provided for the MHRT concluding that the circumstances in s 88(1)(b) had not been made out.
Certainly the report from the respondent provided in this appeal does not provide contradictory evidence.
Further, the evidence from Mr Denny upon questioning from the MHRT provides some support for the proposition that the management order should be revoked. In response to questions from the Tribunal concerning the order permitting the appellant to manage some of her affairs, namely her pension, Mr Denny said at T5: I would probably say that if there wasn't substantial assets coming to her via other means then it would be a good case of a situation of making an application to the MHRT to revoke the Order on the basis she would be quite capable of managing that aspect of her assets altogether, however with this added complication of almost $260,000.00 coming into the picture, that places a little bit of a harder situation or the Tribunal to actually provide a situation where she would be then deemed to manage those funds totally, not just the pension but everything else.
Clearly Mr Denny himself thought that, but for the value of the late husband's Estate and the appellant's mobile home, the welfare and interests of the appellant supported the revocation of the management order.
In light of the above, the conclusion that there was no evidence and, in the absence of satisfactory explanation, the consequential rejection of the appellant's submission that it was in her best interest that the management order be revoked each constitute errors of law. This is because there is an error of law and a failure to give adequate reasons where a decision maker: 1. ignores evidence critical to an issue in a case and contrary to the assertion of a fact made by one party: Mifsud v Campbell (1981) 21 NSWLR 725 per Samuels JA at 728 D-E; and 2. otherwise fails to set out relevant evidence and findings and/ or explain why a particular conclusion has been reached: see Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 per Meagher JA at 441-444
Secondly, the MHRT was not satisfied the appellant was capable of managing her affairs. In reaching this conclusion the MHRT found: 1. The appellant is still managing her pension however, "she still request cash advances"; 2. The appellant has "disengaged with mental health"; 3. The appellant is "impulsive when (she) as access to large sums of money" and "entered into an agreement to sell a caravan despite being aware she was unable to do so"; 4. The appellant set up a bank account without notifying the respondent and has not demonstrated a capacity to manage the Probate in connection with her late husband's Estate in the United Kingdom; and 5. The appellant is not capable of managing her financial affairs.
The evidence before the MHRT included the following evidence: 1. The appellant is 63. She was the subject of CTOs from 1999 until 2016. 2. The appellant is no longer subject to a CTO. 3. The appellant moved to Queensland last year and resides at the Hostel. She has lived at the Hostel since 31 August 2016 and is an exemplary tenant: Hostel letter dated 1 December 2016, part of appeal bundle Annexure A. 4. Since October 2016, the appellant has been working with the social worker, Ms Dewar, having sought counselling appointments with Ms Dewar following a referral from the appellant's general practitioner. Ms Dewar supports the application for revocation having discussed with the appellant her capacity and confidence to be able to manage her financial affairs: see Ms Dewar's letter dated 11 November 2016, part of Annexure A. The appellant also sees Dr Boyce who prescribes various medications for her on an ongoing basis: Appellant at T6 5. An authority under s 71(2) of the TG Act is presently in place permitting the appellant to receive and manage a widow's pension which is paid into a Commonwealth Bank account and applied to meet her living expenses. This authority was apparently issued on 7 August 2013 for a period of 12 months and has been reviewed and approved on at least three occasions: see eg evidence of Mr Denny at T4-5. 6. The appellant funds all her living expenses from a widow's pension, including food and accommodation costs at the Hostel: Appellant at T3-T4. Bank statements included in the bundle corroborate the appellant has paid $400 per fortnight to the Hostel. 7. The appellant opened an account at Westpac Bank: appellant at T3. The appellant has a personal banker at Westpac, Holly Green, who provides advice about how to manage her saving and investment account: appellant at T4 and T14. The appellant says that she would invest any money received from her late husband's Estate with Westpac with the advice and assistance of Ms Green: appellant at T3. 8. The appellant does, from time to time, request extra payments from the respondent: Mr Denny at T4-T5. 9. In addition to the bank account she is permitted to operate pursuant to the authority under the TG Act, the assets consist of a caravan located at a caravan park in regional New South Wales and her interest in her husband's Estate. 10. The appellant attempted to sell her caravan to a person named Mr Webber. The evidence of the appellant suggests the price was $66,000.00, $54,000.00 being paid directly to the appellant, the balance to be subsequently paid: appellant at T7. There is some support for the fact that $54,000.00 was paid: see reports of respondent attached to the email to NCAT dated 23 June 2017 (from Ms Dana Skopejla) and the report attached to the Reply to Appeal (signed by Mr Keogh). However, this evidence was not before the MHRT, being prepared after the present appeal was filed. 11. Despite this evidence, the Commonwealth Bank statements for the account into which the proceeds was paid records the amount of $50,000 only was received and deposited on 15 June 2016. The only other amount deposited into the Bank account was $2500.00 being a cash deposit at the [regional NSW] branch on 9 June 2016: see Annexure A documents. There is no evidence about the source of this sum. However, what is clear from the bank statements (part of Annexure B) is that an amount of $54,000.00 was not in fact deposited into the Commonwealth Bank account in June 2016. 12. The evidence of Mr Denny corroborates the sale price was $66,000.00: Mr Denny at T7. There is some suggestion the sale was recorded in writing: Mr Denny at T 5. However that document is not in evidence. 13. Mr Denny says that Mr Webber tried to complete the sale with the appellant. When Mr Webber had not heard from the appellant, he contacted the respondent. Mr Webber was advised by the respondent the sale was not approved and the respondent did not subsequently approve the sale to Mr Webber. Consequently, the respondent arranged to refund Mr Webber the monies paid: Mr Denny at T5. 14. Mr Denny gave evidence that this attempted sale was one of several occasions in which the appellant had tried to sell the caravan, despite advice from the respondent that she was not entitled to do so without its approval: Mr Denny at T9. In providing this evidence, Mr Denny also said the respondent had been attempting to sell the caravan but due to various issues the sale was delayed. The reasons included that there was uncertainty about where the appellant would live and whether she would wish to return to the caravan park. Mr Denny also said that, having confirmed various aspects of occupation and where the appellant was going to reside, that this "put the whole decision process further back and that has then created the low generating for the sale". Mr Denny then said "we had to refund (the funds to Mr Webber) because it wasn't ethically (the appellant's) money". Mr Denny at T9. 15. By letter dated 29 August 2016 the respondent advised the appellant a "decision was made based on your instruction to sell the caravan as you have relocated to QLD on the 29/06/2016". It would appear the caravan has not yet been sold. Certainly it was not sold at the date of the hearing before the MHRT, the evidence suggesting it was then valued by the respondent at $83,000: Mr Denny at T6. We note in passing that the report of the respondent attached to the Reply to Appeal shows the asset remains unsold and is listed at a value of $45,000.00 not $83,000.00 being the value asserted by Mr Denny in his evidence to the MHRT: Mr Denny at T1. 16. In relation to the funds received from the sale by the appellant, as stated above, $50,000.00 was paid into the appellant's Commonwealth Bank account. The bank statement shows $20,000.00 was transferred out on 15 June 2016 into a term deposit which was then transferred to the respondent on 10 August 2016: Mr Denny at T8. Also, an amount of $22,443.09 was transferred by the respondent from this account to the respondent's trust account on 23 June 2016: see Commonwealth Bank statement- Annexure A. 17. As to the balance of the $50,000, being approximately $7750, it appears from the Commonwealth Bank statements there was a withdrawal of $4000.00, a payment to a hotel in regional Queensland for $318.00, a payment to Flight Centre of $697.00 and a payment to JB Hi-Fi of $279.00. These payments were in addition to the payments by the appellant of her rent and groceries, also listed as withdrawals from the Commonwealth Bank account. 18. There does not appear to have been any evidence before the MHRT as to what the $4000.00 cash withdrawal was spent on. However, the reports prepared by Ms Skopelja and Mr Keogh submitted to the Appeal Panel suggests a motor scooter may have been purchased by the appellant and holidays paid for with the cash withdrawn from the account. No receipts for any such payments have been provided to the Appeal Panel. 19. There was evidence before the MHRT that the appellant "from time to time does actually request extras through the trust account (held by the respondent) but the Order has been or the self-management part of the Order has actually been reviewed each year and renewed each year for some years": Mr Denny at T 5. This evidence does not suggest that the requests for cash advances are excessive or extraordinary or reflect incapacity of the appellant to manage her affairs or act in an impulsive manner. Rather, the only evidence from Mr Denny (to which we have referred above) was a concern about the capacity of the appellant to manage "substantial assets coming her way via other means": Mr Denny at T 5 (presumably a reference to the appellant's interest in the Estate of her late husband). 20. There was also evidence before the MHRT that the appellant has sought funds from the respondent to go on holidays from time to time, including overseas, something she apparently did with her late husband: Letter from appellant to respondent dated 28 July 2016 being part of Annexure B. There is no evidence of a response and Mr Denny does not appear to provide evidence about such requests in his oral evidence to the MHRT. 21. The Estate remains under administration, the proceeds of investment in the United Kingdom are still to be collected by the respondent as executor of the Estate. In this regard, there is no evidence to which we have been referred to suggest that the appellant has sought to or has in fact been involved in the administration.
In our opinion, the evidence to which we have referred establishes the following: 1. The appellant is managing her affairs, utilising her widow's pension to pay rent and groceries, having moved to Queensland around the time the last CTO expired. 2. The appellant is under the care of a general practitioner and a social worker and receives ongoing treatment for her mental health issues. This is a voluntary decision she has made. 3. In managing her financial affairs, she opened a Westpac Bank account. While she did so without approval of the respondent, the evidence indicates this was done in expectation that she would be released from the financial management order. Whether or not this is correct, she has formed a professional relationship with her personal banker, Ms Green, who is providing assistance with investment decisions. 4. The appellant attempted to sell her caravan for $66,000.00 to Mr Webber. It is clear it was not authorised by the respondent. However, sale of the caravan was approved two months later, after the respondent renounced the sale to Mr Webber. 5. Despite the evidence of Mr Denny as to value (which is inconsistent with the value now ascribed to the caravan in the report from the respondent attached to the reply to Appeal), the sale to Mr Webber appears to be what might be described as an arm's length transaction for full value. 6. Of the $50,000.00 received as part payment for the caravan, the appellant put $22,000.00 on deposit with the Commonwealth Bank. The balance of the proceeds of sale remained in her Commonwealth Bank pension security account, although there were withdrawals of about $7500 which we have identified above. 7. The appellant has occasionally requested and received from the respondent small amounts of cash to supplement her living expenses and lifestyle. Some of these requests do not appear to have been dealt with by the respondent.
The matters in the previous paragraphs are inconsistent with the appellant having "disengaged" in relation to her mental health and being "impulsive" when she receives large sums of money.
Further, this evidence has not been dealt with or referred to in the reasons for decision of the MHRT.
There is no evidence to support a conclusion that the appellant has been involved in the administration of the Estate of her late husband or that she would be incapable of managing the proceeds from the Estate if distributed to her after collection by the respondent as executor.
It follows that in our view the reasons are also inadequate in dealing with the issue of whether the appellant was capable of managing her affairs. This inadequacy constitutes an error of law of the type referred to in Mifsud and Beale above.
Further, in our view the conclusions of fact reached by the MHRT were such that leave should be granted to appeal the decision.
In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel set out the general principles applicable to the grant of leave. At [84] the Appeal Panel said: 84.The general principles derived from these cases can be summarised as follows: 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.
The facts to which we have referred demonstrate the MHRT was in error in its conclusions concerning capacity and best interest, being the relevant considerations under s 88 of the TG Act, and that there is a consequential injustice to the appellant. This view is strengthened by a consideration of the principles in s 39 of the TG Act which, relevantly, provides: It is the duty of everyone exercising functions under this Chapter with respect to protected persons or patients 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.
Further, in the context of this appeal, we are satisfied that the appellant, 1. who now resides in Queensland; 2. who is no longer subject to a community treatment order and voluntarily obtains ongoing medical treatment; 3. who has established a professional relationship with a banker and access to financial advice; and 4. who manages her pension and independently provides for her own accommodation, food and clothing in an environment where she is an "exemplary tenant", is capable of managing her own financial affairs.

If yes, what orders should be made in this appeal?

In our opinion, the order dismissing the application should be set aside and an order made in substitution to revoke the management order made 20 October 1999.
In the absence of any contrary evidence, we are satisfied on the evidence of the appellant and Ms Dewar that: 1. The continuation of the management order causes the appellant distress and anxiety; 2. The appellant has, and is continuing to receive relevant medical treatment; 3. The appellant is confident and able to manage her money, budget appropriately, make relevant decisions concerning her well-being and management of her financial affairs; 4. The appellant has access to financial advice concerning investment matters; and 5. That it is in her best interest, including improving her mental well-being, that the appellant be allowed to manage her own affairs and continue her established life in Queensland where she wishes to live.
No doubt there are some complexities in the resolution of the Estate of her late husband, property being located in the United Kingdom. One can infer this was a reason why the husband determined to appoint the respondent as his executor, particularly having regard to the circumstances of the appellant that existed when the husband prepared his will in 2014. This is a role which the respondent will continue to perform, hopefully to facilitate a finalisation of the administration of the Estate within a short period of time. While revocation of the management order will return to the appellant the management of her estate, she will have to await completion of the administration of the Estate of her late husband by the respondent. Any issues which arise in this regard will need to be dealt with in accordance with the legislation applicable to the respondent as an executor and trustee of a deceased person's estate.
Finally, we note that there is an overdraft facility which the respondent has established for the purpose of refunding to Mr Webber the balance of the amount paid by him to the appellant. The parties should make appropriate arrangements for the discharge of this liability. This may involve completion of the sale of the caravan which should provide funds to discharge this debt. An alternative possibility may be for the appellant to provide an irrevocable authority to the respondent as executor of the Estate to pay this debt from the proceeds of that Estate.
This is a matter which the parties should resolve between them. While we would not expect any dispute, we will reserve to the parties liberty to apply to the Appeal Panel to make any orders necessary.
Finally, having regard to the nature of these proceedings, an order restricting the publication of the name of the appellant and other information that might identify her should be made. In this regard we will publish a redacted version of these reasons. The power to make such an order is found in s 64(1)(a) of the NCAT Act.
Accordingly, the Appeal Panel makes the following orders: 1. The time to lodge the appeal is extended to 20 March 2017. 2. Leave is granted to appeal the decision of the Mental Health Review Tribunal made on 9 February 2017. 3. The order that the current financial management order not be revoked is set aside. 4. In substitution, the Appeal Panel orders pursuant to s 88 of the NSW Trustee and Guardian Act 2009, that the order made on 20 October 1999 that the estate of DGM be subject to management is revoked. 5. The parties have liberty to apply to the Appeal Panel, which may be differently constituted, for the purpose of the Appeal Panel making any ancillary orders necessary to give effect to these orders. 6. Publication of the names of the parties, other than the NSW Trustee and Guardian, is prohibited. A reference to the name of a person includes a reference to any information, picture or any other material that identifies the person or is likely to lead to the identification of the person.

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

Amendments 29 November 2017 - Order 4 replaced 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: 29 November 2017

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Judgment (10 paragraphs)

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Cases Cited (6)

Cited By (2)