DHQ v DHR

[2018] NSWCATAP 128

NCAT Appeal Panel|2018-03-29

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At a glance

AI case summary

Result

appellant. The time to lodge the notice of appeal was extended to 30 January 2018. The appeal was dismissed.

Key principles

The Tribunal was properly constituted by a single member when reviewing a financial management order under cl 4(2)(b) of Sch 6 to the Civil & Administrative Tribunal Act 2013...
A decision to confirm a financial management order under s 25P of the Guardianship Act 1987 (NSW) is not legally unreasonable where the Tribunal provides a cogent and objectively...
Allegations of actual bias require distinct pleading, clear proof and cogent evidence; subjective belief that a decision is irrational or unreasonable, without more, is...
The power to extend time to lodge an appeal under s 41 of the NCAT Act should be exercised where there is a reasonable explanation for delay (age and infirmity), no substantial...

Issues before the court

Whether the Tribunal was properly constituted when reviewing a financial management order
Whether the decision under appeal was legally unreasonable
Whether the Tribunal member was biased

Plain English Summary

An elderly man appealed against a decision to appoint the NSW Trustee to manage his sister's finances. The Appeal Panel ruled that: (1) a single Tribunal member could lawfully conduct the review; (2) the decision was reasonable because the Tribunal properly considered risks to the sister's care; (3) there was no evidence the Tribunal member was biased; and (4) while the appeal was lodged late, the delay was excusable due to the appellant's age and health. The appeal was dismissed, though the man could apply for a fresh review if circumstances changed.

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Catchwords

HUMAN RIGHTS - whether the Tribunal in reviewing a financial management order was properly constituted in accordance with cl 4 of Sch 6 to the Civil & Administrative Tribunal Act 2013 (NSW)

Judgment (19 paragraphs)

[1]

REASONS FOR DECISION

[3]

Background to the appeal

In December 2010, one of NCAT's predecessors, the Guardianship Tribunal of NSW, made a guardianship order in respect of the subject person, appointing the Public Guardian to make decisions about services. In addition, the Guardianship Tribunal made a reviewable financial management order committing the management of the subject person's estate to the NSW Trustee. Both orders were made for a period of six months. They were the first in a series of orders made under the Guardianship Act 1987 (NSW), by the Guardianship Tribunal and later NCAT in respect of the subject person.
The appellant successfully appealed from these decisions to the Administrative Decisions Tribunal of NSW (the ADT): ABT v NSW Trustee and Guardian & ors [2011] Administrative Decisions Tribunal, 118003 (unreported, Hennessey, N, Goodchild, L, Field, B, 22 June 2011). The ADT set aside each decision and remitted the initiating application to the Guardianship Tribunal for redetermination.
On remittal, in August 2011, the Guardianship Tribunal made a guardianship order in respect of the subject person, appointing the Public Guardian for a period of 12 months to make decisions about healthcare and services. The Tribunal dismissed the application for a financial management order.
In November 2012, the Guardianship Tribunal reviewed the guardianship order, as required by s 25(2) of the Guardianship Act, and decided to permit the order to lapse.
In January 2017, the subject person was admitted to Manly Hospital with a serious illness. The following month she was transferred to an aged care facility to receive respite care. On 3 April 2017, the appellant discharged his sister from hospital against medical advice. Ten days later, she was readmitted to hospital. In May 2017, against the strong opposition of the appellant, the subject person was transferred to an aged care facility, where she resides to this day (the Facility).
On 24 May 2017, following an application made by a care co-ordinator employed by Northern Beaches Community Care, the Guardianship Division of NCAT made a guardianship order in respect of the subject person appointing the Public Guardian and giving an accommodation function. In addition the Tribunal made a financial management order committing the management of the subject person's estate to the NSW Trustee. The Tribunal made both orders reviewable and for a term of three months. Neither the appellant nor the subject person attended the hearing when these orders were made.
In August 2017, following the end-of-term review of the guardianship and financial management orders made in May 2017, the Tribunal (constituted by Senior Member, J Anderson) confirmed the financial management order made in May 2017 (the decision under appeal). In addition, the Tribunal renewed and varied the May 2017 guardianship order, making a guardianship order for a term of nine months, appointing the Public Guardian and conferring an accommodation function.
The appellant opposed the renewal of the guardianship and financial management orders made in May 2017. Solicitor, Mark Warren, who acted as separate representative for the subject person, urged the Tribunal to renew the guardianship and financial management orders. Mr Warren also acted as separate representative for the subject person in this appeal.

[8]

Ground 1: The decision was ultra vires

The appellant contends that the decision under appeal is "null and void" because the Tribunal was not properly constituted. The Tribunal was constituted by a single member, an Australian lawyer assigned to the Guardianship Division: cl 2 of Sch 6 of the NCAT Act. The appellant asserts that the rules that govern practice and procedure in NCAT required the Tribunal to be constituted by three members.
The appellant is correct that the decision under appeal will be void or of no legal effect if the Tribunal was not properly constituted. However, for the reasons that follow the Tribunal which made the decision under appeal was properly constituted in accordance with the provisions of the NCAT Act.
When exercising its substantive functions under the Guardianship Act, the Tribunal must be constituted by three members unless the Tribunal is undertaking one of the functions under that Act listed in cl 4(2) of Sch 6 to the NCAT Act. These include reviews of guardianship and financial management orders: cll 4(2)(a), 4(2)(b) of Sch 6 to the NCAT Act. Cl 4 of Sch 6 to the NCAT Act reads: 4 CONSTITUTION OF TRIBUNAL (1) The Tribunal, when exercising its substantive Division functions, is to be constituted by 3 Division members as follows: (a) 1 member who is an Australian lawyer, (b) 1 member with a professional qualification, (c) 1 member with a community based qualification. (2) Despite subclause (1), the Tribunal may be constituted by 1 or 2 Division members in exercising its substantive Division functions for the purposes of the following provisions of the Guardianship Act 1987: (a) Division 4 (Assessment and review of guardianship orders) of Part 3, (b) Division 2 (Review and revocation of financial management orders) of Part 3A, (Emphasis added)
The decisions made by the Tribunal in August 2017 were made in the exercise of the power to review a guardianship order and the power to review a financial management order. Clause 4(2) of Sch 6 to the NCAT Act permits the Tribunal to be constituted by a single member when exercising those powers.
The appellant has been involved in numerous proceedings in both NCAT and the Guardianship Tribunal. In all, apart from the review proceedings, the subject of this appeal, the Tribunal was constituted by three members - an Australian lawyer, a member with a "professional qualification" and a member with a "community based qualification": see cl 1(2) of Sch 6 to the NCAT Act. Given this history, it is not surprising that the appellant assumed that the Tribunal which conducted the August 2017 review would be constituted in the same way. However, as explained above, he was mistaken in his belief that there was a statutory requirement that the Tribunal must be constituted by three members.
This ground of appeal is rejected.

[9]

Ground 2: The decision under appeal was legally unreasonable

To succeed on this ground, the appellant must establish that the decision under appeal was one that could not reasonably have been reached. In Li, the High Court held that there was a legal presumption that the legislature intended that a statutory discretionary power would be exercised reasonably.
In Li the High Court extended the basis upon which the exercise of a discretionary power can be set aside on the ground of unreasonableness. The plurality (Hayne, Kiefel and Bell JJ) held at [68] that Wednesbury unreasonableness, that is, an irrational, if not bizarre decision - one that no reasonable person could have arrived at (per Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223) - is neither the starting nor the end point for the standard of unreasonableness. The plurality held that the concept of legal unreasonableness extends to a decision which lacks "an evident and intelligible justification" and one which involves an error in the exercise of a discretion, such as where the decision-maker acts on a wrong principle or takes irrelevant matters into consideration: [75], [76].
In Judicial Review of Administrative Action and Government Liability by M Aronson, M Groves and G Weeks (Thomson Reuters, 6th ed, 2017) the authors commented (at [6.450]), that Li "invites a qualitative assessment of the impugned discretionary decision, but it does not allow an appeal to the judicial review judge's subjective sense of reasonableness". See also GAR v Attorney General of New South Wales (No 2) [2017] NSWCA 314 at [154].
In Oswal v Commissioner of Taxation [2015] FCA 1439 at [48], Griffiths J usefully summarised the relevant principles concerning legal unreasonableness discussed by the Full Court of the Federal Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 (Singh): "Legal unreasonableness 'is invariably fact dependent' and requires a careful evaluation of the evidence. The outcome of any particular case in which it is claimed that there has been a legally unreasonable exercise of a statutory discretionary power will depend on the application of the principles from Li and the authorities discussed therein, rather than on an analysis of factual similarities or differences between individual cases, including Li": at [42]; "There is a presumption of law that the Parliament intends an exercise of statutory power to be reasonable": at [43]; "There are two species of legal unreasonableness, namely where the review court has identified an underlying jurisdictional error in the decision-making process and also where the concept of legal unreasonableness is 'outcome focused' and there is lacking 'an evident and intelligible justification': at [44] citing Li at [76] per Hayne, Kiefel and Bell JJ and at [105] per Gageler J; "Where there are reasons in support of an exercise of discretion, those reasons will provide the focus for an assessment as to whether the decision is unreasonable in the legal sense and, in such a case, it would be a rare where the reasons demonstrate a justification but the ultimate exercise of the power is seen to be legally unreasonable": [45]-[47]; and "The standard of legal unreasonableness applies across a wide range of statutory powers, but the indicia of legal unreasonableness will need to be found in a scope, subject and purpose of the particular statutory provisions in issue in any given case, as well as the fact dependent": at [48].

[10]

Statutory framework

Before addressing the appellant's arguments in support of this ground, we will examine the statutory framework which governed the exercise of the Tribunal's power to make the decision under appeal.
The power to make a financial management order can only be exercised if, after considering the person's capability to manage their affairs, the Tribunal is satisfied of the three matters listed in s 25G of the Guardianship Act, namely that: the person is not capable of managing their affairs, there is a need for another person to manage those affairs on the person's behalf, and it is in the person's best interests that the order be made. The Tribunal may order that a financial management order be reviewed within a specified time: s 25N of the Guardianship Act.
If the Tribunal makes a financial management order in respect of the estate (or part of the estate) of a person, the Tribunal may appoint a suitable person as manager of the estate. Alternatively, the Tribunal may commit the management of the estate to the NSW Trustee: s 25M of the Guardianship Act.
The orders available to the Tribunal on review of a financial management order are listed in s 25P of the Guardianship Act: (1) On reviewing a financial management order under section 25N, the Tribunal: (a) must vary, revoke or confirm the order, and (b) if it considers it appropriate to do so may take such action with respect to the appointment of the manager of the protected person's estate as the Tribunal could take on a review of such an appointment under Division 3. (2) 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). (3) In this section, "vary", in relation to a financial management order, includes to exclude (or remove an exclusion of) a specified part of the protected person's estate from the order.
In making an order under s 25P of the Guardianship Act, the Tribunal must observe the principles listed in s 4 of that Act: 4 GENERAL PRINCIPLES It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities 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, (h) the community should be encouraged to apply and promote these principles.
The obligation to have regard to these principles is reinforced by cl 5(1) of sch 6 to the NCAT Act, which provides that when exercising its "Division functions for the purposes of the Guardianship Act 1987", the Tribunal is under a duty to observe the principles set out in s 4 of the Guardianship Act. (See Lindsay J pointed out at P v NSW Trustee and Guardian [2015] NSWSC 579 at [53]-[58], ZGM v ZGN [2018] NSWCATAP 101 at [39]; ZBC v ZBD [2016] NSWCATAP 264 at [101], [105]).

[12]

Consideration

We understand the appellant to argue that the decision was unreasonable in the sense that it lacked "an evident and intelligible justification": Li at [76].
In the review proceedings, the appellant urged the Tribunal to revoke the financial management order. That order could only be made if the Tribunal was satisfied of one of two things: that the subject person was capable of managing her affairs, or, it is in the best interests of the subject person that the order be revoked: s 25P(2) of the Guardianship Act. None of the parties contend that the subject person was capable of managing her affairs. Rather, the issue in contest was whether it was in her best interests to revoke the financial management order.
In concluding that it would not be in the subject person's best interests to revoke the financial management order, the Tribunal had regard to three key considerations.
First, the appellant's opposition to his sister's continued residence at the Facility: DHS, NCAT, File no 2009/00475426 (unreported, Anderson, J, 25 August 2017) (Reasons) at [65]. The Tribunal noted that the appellant remained "steadfastly opposed" to his sister's continued residence at the Facility: Reasons at [43]. Noting that three months earlier the appellant had removed the subject person from the Facility against medical advice, the Tribunal found that there was a risk that he might do so again, "contrary to her wishes and medical advice": Reasons at [43].
Second, the Tribunal concluded that the appellant's demonstrated hostility to the Director of the Facility, whom he referred to throughout the proceedings as "the plaintiff" and "a liar", meant it could not be satisfied that the appellant would "agree to and consistently maintain all payments for his sister's ongoing accommodation and care": Reasons at [65].
Third, the absence of any plans made by the appellant for the management of his sister's estate "in the event he is not able (through illness or other factors) to manage her affairs in the future": at [66]. The Tribunal noted the appellant's "advanced age" and the absence of any involvement of family members in his life and that of the subject person: at [66].
In its Reasons, the Tribunal noted the appellant's claim that he is a "very skilful bookkeeper" and had managed his sister's estate for many years (at [62]) but made no finding about those claims. The conclusion reached by the Tribunal, that it was not in the best interests of the subject person to revoke the financial management order, turned on the assessment that there was a risk, if the financial management order was revoked and the appellant assumed the role of de-facto financial manager, that he might attempt to undermine the Public Guardian's exercise of its accommodation function by withholding payment for his sister's accommodation and care. The Tribunal also concluded that the appellant's failure to develop a contingency plan, in the event he became unable to manage his sister's finances, posed a potential and unacceptable risk to her estate: at [66].
The explanation given by the Tribunal for concluding that it was not in the subject person's best interests to revoke the financial management order was cogent and objectively reasonable. The Tribunal, in effect, undertook a risk assessment and concluded that the risk of revoking the financial management order outweighed any factors which might favour a reversion to the "informal arrangements" which had been in place before the making of the financial management order in May 2017. It is implicit from its reasons that in evaluating whether it was in the subject person's best interests to revoke the financial management order, the Tribunal had regard to its duty to give paramount consideration to the interest to the welfare and interests of the subject person: s 4(a) of the Guardianship Act.
The available material indicates that the Tribunal gave careful consideration to the question of whether it was in the subject person's best interests to revoke the May 2017 financial management order. It gave cogent reasons for its conclusion. We are unable to accept the contention that the decision not to exercise the power to revoke the financial management order lacked an evident and intelligible justification. This ground of appeal is rejected.

[13]

Ground 3: the Tribunal was biased

The Tribunal was obliged to afford the appellant procedural fairness: s 38(2) of the NCAT Act. As part of that obligation, the Tribunal was required to determine the review and any issue that might arise in its determination, without bias or the appearance of bias.
The appellant alleges actual bias. He bears the onus of demonstrating actual bias. It is a heavy onus to discharge: per French J in Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87 at 106, 107, cited with approval by Gleeson CJ and Gummow J in Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 (Jia Legeng) at 520. An allegation of actual bias must be distinctly made, clearly proved and supported by cogent evidence. A finding of actual bias should not be made lightly: South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97].
In Jia Legeng, Hayne J explained at [183]: "Bias" is used to indicate some preponderating disposition or tendency, a "propensity; predisposition towards; predilection; prejudice". It may be occasioned by interest in the outcome, by affection or enmity, or, as was said to be the case here, by prejudgment. Whatever its cause, the result that is asserted or feared is a deviation from the true course of decision-making, for bias is "any thing which turns a man to a particular course, or gives the direction to his measures" [citations omitted].
In submissions in support of this ground, the appellant described the Tribunal Member in colourful terms, asserting that she was "amoral" and had acted "maliciously, venously, spitefully, hatefully and unethically". However, he was unable to point to any material which might support a finding that he was treated unfairly in any procedural or substantive way, or that the Member was motivated by bias, malice or some other legally disabling factor. Nor was he able to point to any material to support his belief that for reasons of "bias" the Member determined the review other than on its merits.
In effect, the appellant contends that that the only rational explanation for the decision not to revoke the financial management order was that the Member was ill-disposed towards him. That contention appears to be another way of expressing the view that the decision was irrational and unreasonable. The appellant's subjective belief that the decision under appeal was irrational and unreasonable might be genuine, but of itself is insufficient to support a finding that the Member was biased.
The allegation of actual bias is not established. This ground of appeal must be rejected.

[14]

Should the power to deal with the appeal by way of a new hearing be exercised?

Having found none of the grounds of appeal established, it would nonetheless be open to us to deal with the appeal by way of a new hearing and take into account fresh evidence, as permitted by s 80(3) of the NCAT Act. Relevant to the determination of whether that power should be exercised are the changed circumstances relating to the subject person, since the making of the decision under appeal.
The changed circumstances include first, the deterioration in the subject person's health. At the hearing of the appeal, her condition was reported to be critical. Second, as a result of her decline, the appellant now acknowledges that it is no longer feasible for his sister to return to live at home. His claim made during the hearing of the appeal that he no longer opposes the appointment of the Public Guardian or its decision that his sister remain at the Facility, is consistent with his decision to withdraw the appeal against the decision to renew the May 2017 Guardianship Order. Third, the material which suggests that the appellant and the Director of the Facility are now on reasonably good terms. It will be recalled that the appellant's "demonstrated hostility" towards the Director led the Tribunal to conclude that without a financial management order there was a risk that the appellant might withhold payment for his sister's accommodation and care, and, in turn, jeopardise her on-going care and accommodation: at [65].
Two of the three reasons given by the Tribunal for concluding that it is not in the subject person's best interests to revoke the financial management order, appear to no longer apply. However, we have decided not to exercise the power conferred by s 80(3) to deal with the appeal by way of a new hearing for the following reasons. First, there is no evidence to address the third concern identified by the Tribunal, namely the failure of the appellant to put in place a contingency plan for managing his sister's finances in the event he found himself unable to do so. Second, the lack of evidence to support the appellant's self-report that he remains capable of dealing with his sister's affairs in a prudent and orderly fashion. Even if accepted that the appellant capably managed his sister's finances in the past, a claim which, while un-contradicted, is unsupported, it does not necessarily follow that he is, and is likely to remain able to do so, for the foreseeable future.
It is open to the appellant to seek review of the financial management order and provide evidence in support of his claim that he is a suitable person to manage his sister's estate on either a formal or informal basis. Given the availability of this option together with the lack of evidence about the appellant's current suitability to manage his sister's estate, we have decided not to proceed to conduct a new hearing, notwithstanding the change in circumstances since the decision under appeal was made.

DHQ v DHR

At a glance

Result

Key principles

Issues before the court

Plain English Summary

Catchwords

Judgment (19 paragraphs)

Cited legislation

Parties

Legislation Cited (5)

Cases Cited (13)

Cited By (6)

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