DHV v DHW

NCAT Appeal Panel|2018-06-29

Overview

DHW is an elderly man with dementia who lives with one of his daughters, DHX, in suburban Sydney. His son DHV applied to the Guardianship Division of the Tribunal for a financial management order to be made. A financial management order gives someone else the power to make financial decisions on behalf of DHW. The Tribunal found that DHW was incapable of managing his own financial affairs. But the Tribunal decided not to make the order because there was no need to formally appoint another person to make decisions on DHW's behalf and it was not in his best interests to do so: Guardianship Act 1987 (NSW), s 25G(b) and (c).
DHW's son, DHV, has appealed to the Appeal Panel from that decision. DHW's other daughter, DHY, supported the appeal. The main ground of appeal is that when deciding whether there was a need to appoint a financial manager the Tribunal did not observe each of the principles in s 4 of the Guardianship Act and gave insufficient weight to evidence that DHX was mismanaging her father's finances. DHV also applied for permission to appeal on the basis that the Tribunal had made obvious factual errors.
DHW did not attend the hearing and was not represented. We accept Dr C's opinion expressed in a letter dated 27 April 2018 that it was not in DHW's best interests to attend the hearing. The stress of attending would bring on symptoms of anxiety and he gets tired easily. The transcript of his evidence before the Tribunal was in evidence on the appeal.
Mr Jessep clarified that he was only representing DHX, not DHW. DHX's general practitioner expressed the opinion in a letter dated 27 June 2018, that DHX has a medical condition which impaired her ability to attend the hearing. She did not attend.
For the reasons we give below, we have decided to dismiss the appeal.

Grounds of Appeal

DHV is entitled to appeal on a question of law but needs the Appeal Panel's permission before he can appeal on any other ground: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2)(b).
DHV's lawyer clarified at the hearing that she was not relying on the grounds of appeal in the Notice of Appeal or in the document attached to that Notice. She is relying on the document headed "Written Submissions for the Appellant" and the "Appellant Submissions in Reply" (both undated).

Applications to rely on fresh evidence

DHV sought to rely on new evidence on appeal. That evidence was: 1. a letter from Mr S (an accountant) dated 13 March 2018 in relation to DHW's potential tax liabilities; and 2. a statement dated 26 March 2018 by DHW's niece who did not give evidence at the Tribunal hearing which purported to respond to three statements containing allegations about her which were filed at the Tribunal hearing.
DHX also sought to rely on new evidence - a statement from her dated 13 April 2017 (but presumably intended to be dated 13 April 2018).
The Appeal Panel must give permission before a party can rely on evidence on appeal, which they did not rely on at the Tribunal hearing. The principles the Appeal Panel should apply when considering such an application include that: 1. the evidence could not have been discovered by the exercise of reasonable diligence before the Tribunal hearing: Wright v Ryan & Anor [2005] NSWCA 368, at [24]; 2. before giving permission, the Appeal Panel must be "affirmatively satisfied" that, having regard to the findings of the Tribunal at first instance, the further evidence, if tendered at the hearing conducted by the Tribunal was "likely to have produced a different result": Building Professionals Board v Hans [2008] NSWADTAP 13, at [54]; ZCK v NSW Trustee and Guardian [2016] NSWCATAP 200, at [25].
Each of the documents which the parties sought to tender was written after the Tribunal handed down its decision.
The letter from Mr S (the accountant) relating to DHW's potential tax liabilities was prepared in response to a discussion during the hearing about whether DHW has an accountant and whether he needs to lodge a tax return. DHX gave evidence (at page 57, line 14 of the transcript) that when her father retired, she was told that he did not have to pay any more tax. Mr S attended the hearing. He was asked whether DHW had an accountant, but was not asked for his opinion as to whether DHW needed to lodge a tax return. The Tribunal did not address the question of whether DHW needed to lodge a tax return in the reasons for decision.
The new statement from Mr S asserts that the Tribunal did not consider some important aspects of taxation law. He proceeded to give his opinion as to DHW's potential tax liability and expressed the view that DHX's alleged failure to address this issue constitutes financial mismanagement.
We have decided not to take into account this new evidence. The allegation that DHX mismanaged her father's affairs by not lodging a tax return was made for the first time on appeal. If that had been an issue, DHV could have arranged for Mr S to provide evidence about that matter at the hearing. Applying the first part of the test, the evidence could have been discovered by the exercise of reasonable diligence before the Tribunal hearing.
Applying the second part of the test, we are not satisfied that the further evidence, if tendered at the Tribunal hearing was "likely to have produced a different result". Mr S is not DHW's accountant. He does not know all the facts about DHW's assets, income and potential liability for tax. The evidence was not sufficient to establish that DHW is liable to pay tax. Even if it was, that fact alone would have been unlikely to have produced a different result. All the relevant evidence would have to be weighed to determine whether it was in DHW's best interests for a financial management order to be made.
The new statement from DHW's niece dated 26 March 2018 recounted her experiences while living with DHW and DHX between March and September 2016. She makes several allegations about DHX's behaviour. We have decided not to take into account this new evidence. Applying the first part of the test, DHV could have arranged for DHW's niece to provide evidence at the Tribunal hearing. Applying the second part of the test, we are not satisfied that the further evidence, if tendered at the Tribunal hearing, was "likely to have produced a different result". DHX has not been given an opportunity to respond to the niece's allegations and we do not know what findings the Tribunal would have made about the allegations.
DHX's statement dated 13 April 2017 (but presumably intended to be dated 13 April 2018) sets out the reasons why, in her view, DHV is not a suitable person to be appointed as financial manager. The Tribunal did not have to address that question because it found that there was no need to make a financial management order. The Appeal Panel does not have to address that question either because we have dismissed the appeal.

Ground 1 - failing to take into account the general principles in s 4

The only ground of appeal on a question of law was that the Tribunal's decision failed to take into account the principles in s 4 of the Guardianship Act. In particular the Tribunal failed to take into account the principles in s 4 (a) and (g): 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, … (g) such persons should be protected from neglect, abuse and exploitation
DHV relied on the following passage from a decision of the Appeal Panel of the Administrative Decisions Tribunal, one of the predecessors to NCAT, in WL v NSW Trustee and Guardian [2011] NSWADTAP 22 at [71]-[75]. After noting that s 4 is more than an objects clause, the Appeal Panel reached the following conclusion at [75]: … in relation to the Guardianship Act, when making a decision about whether to revoke a financial management order, or to exercise any other function under the Guardianship Act , a decision maker is bound to observe any relevant principle in s 4. The decision maker may demonstrate that he or she has observed those principles either by referring to them expressly or by writing reasons for decision which demonstrate that all relevant principles have been observed.
In DCX v Public Guardian [2017] NSWCATAD 377 at [53] and [54], the Appeal Panel added two 'glosses' to those conclusions. The first was that the principle in s 4(a), that the welfare and interests of the person should be given paramount consideration, is in a "special category". The decision-maker is required to give consideration to the welfare and interests of the subject person and that consideration must be the decision maker's paramount consideration. In other words, paragraph (a) is always relevant.
DHV also referred to the decision of P v NSW Trustee and Guardian [2015] NSWSC 579 at [308] and [309]. The test being referred to in those passages is about whether a person is capable of managing his or her own affairs. The Tribunal made a clear finding at [35] that DHW was not capable of managing his affairs and that finding was not challenged on appeal. It follows that these passages are not relevant to any ground of appeal in this case.
DHV submitted that the Tribunal failed to observe the principles in s 4(a) and (g) because parts of the Tribunal's decision directly contradict those principles. The following examples were cited: 1. the Tribunal's statements at [56] that it was not their role "… to appoint a financial manager to simply provide supervision of a family member who is informally assisting their relative to manage their affairs so as to protect against future mismanagement or exploitation. " 1. the Tribunal's statement at [64] that: "… suspicions about financial exploitation are insufficient on their own to justify the making of a financial management order."
The "future mismanagement or exploitation" and the "suspicions about financial exploitation" were references to DHV's concerns or suspicions, not to concerns or suspicions that the Tribunal had. The Tribunal did express concern about DHX's insistence that DHW had capacity to manage his own finances and that she should do whatever he directed her to do. The Tribunal decided at [59] that this approach will not always be in DHW's interests given his cognitive impairments. The Tribunal was particularly concerned about DHX's decision to store $50,000 in cash in the house for 9 months when that money could have been earning interest (at [61]).
But the Tribunal did not regard DHX's shortcomings as being sufficiently serious to justify the making of a financial management order. The Tribunal was satisfied that DHX had managed to balance her father's wishes against the need to manage his finances in a prudent and sensible fashion. It follows that when the Tribunal wrote at [56] about the need to protect DHW against "possible future mismanagement or exploitation" the Tribunal was referring to DHV's view that mismanagement may occur in the future. Similarly at [64], when the Tribunal was referring to suspicions about financial exploitation, it was referring to DHV's view.
In WL at [76] the Tribunal observed that many of the section 4 principles are not expressed in absolute terms. Observing a principle does not necessarily mean that the decision-maker must make a financial management order: DCX v Public Guardian [2017] NSWCATAD 377 at [54]. For example, observing the principles in s 4(a) or s 4(g) does not require the Tribunal to make a financial management order in every case where a person's financial interests have been prejudiced. Maintaining the status quo may be in the person's best interests.
The next point DHV made in support of this ground of appeal was that the Tribunal focused disproportionately on the claims that DHX had allegedly abandoned any idea of developing the property or involving her father in that development. The Tribunal made the finding at [66] that DHX had decided not to proceed with developing that property on the basis that it accepted her evidence to that effect. That finding does not contradict any of the principles in s 4.
Another submission which is related to the previous submission, was an assertion that there is a real risk that DHX will re-develop the property and not involve DHW in that decision. As we have said, the Tribunal made a finding of fact at [66] on the basis of evidence given by DHX that she has decided not to proceed with developing the property. While DHV may disagree with that finding, the Tribunal made no legal or other error in reaching it.
Next, it was submitted that the Tribunal failed to take into account the principles in s 4 because it focused on the risk to DHW's real property without considering his general financial situation. That was said to be evident from the Tribunal's statement at [70], that "… if there is a future need for DHW to deal with his real property, then the proper and prudent course for DHX or any legal or other professional involved would be to apply to this Tribunal for a financial manager to be appointed".
It can be inferred from the Tribunal's findings that it was satisfied that DHX's actions had not prejudiced or disadvantaged DHW to such an extent that it was in his best interests for a financial management order to be made. For example, the Tribunal found at [57] that there was no evidence that DHX had mismanaged DHW's bank accounts by withdrawing money to pay for his living expenses and personal needs. At [53] the Tribunal found that DHW was capable of making his own decisions about transferring his interest in the southern Sydney property to DHX.
The Tribunal criticised some of DHX's actions including storing $50,000 in cash in the house. The Tribunal was also concerned about DHX's insistence that DHW had the capacity to manage his own affairs. But those concerns were not enough to conclude that DHW needed a financial manager or that it was in his best interests to have someone formally appointed to that role. It was because the Tribunal found that DHX had not mismanaged DHW's bank accounts that the Tribunal focused on DHW's real property and the likelihood of any decisions having to be made in relation to that property in the near future (see [67] and [70]).
On the basis of the Tribunal's findings of fact, it can readily be inferred that it observed the principles that DHW's welfare and interests should be given paramount consideration and that he should be protected from neglect, abuse and exploitation.

Leave to appeal on grounds other than questions of law

DHV sought leave to appeal on grounds other than questions of law. In Collins v Urban [2014] NSWCATAP 17 at [84], the Appeal Panel set out the circumstances where it is ordinarily appropriate to grant leave. The circumstances relied on in this case were that the matter involves: 1. "questions of public importance or matters of administration or policy which might have general application"; and 2. "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"; and 3. "a factual error that was unreasonably arrived at and clearly mistaken".

Ground 2 - Questions of public importance

DHV submitted that leave should be granted on the basis of the public importance of eliminating elder abuse. He referred to the Australian Law Reform Commission's Discussion Paper entitled, "Elder Abuse Discussion Paper" 83 (December 2016). DHV said that the paper addressed the significant concerns of government, non-government organisations and the public in relation to elder abuse and the need to develop a national plan to address that issue. He said that the Tribunal is bound to undertake best practice decision making as the principal legal agency responding to elder abuse in New South Wales.
DHV relied on the definition of elder abuse set out by the World Health Organisation as "a single, or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust which causes harm or distress to an older person". (At 1.11 of the Discussion Paper). DHV submitted that DHW is either a victim or potential victim of elder abuse and must be protected. That assertion is supported by references to evidence before the Tribunal and findings of the Tribunal. DHV also sought to rely on new evidence which was not before the Tribunal at the time.
For the reasons already given, we have decided not to take into account any fresh evidence. DHV should apply to the Tribunal for a guardianship or a financial management order for DHW if he has fresh evidence of elder abuse justifying the making of such an order.
There is no doubt that elder abuse in the community is a question of public importance. But for the Appeal Panel to give leave to appeal, the question of public importance must be one which arises on appeal. The specific question of whether DHW has been subjected to "elder abuse" does not arise on appeal. The Tribunal's role at first instance was to determine whether to make a financial management order. The Tribunal identified and addressed the evidence before it relating to alleged financial abuse and exploitation.

Ground 3 - readily apparent errors or factual errors that are clearly mistaken

A second basis on which the Tribunal may give permission for DHV to appeal on a question, other than a question of law, is where an appeal involves "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". A third basis is where, an appeal involves "a factual error that was unreasonably arrived at and clearly mistaken". The Tribunal is said to have made these errors in relation to three findings of fact.
The first finding of fact was made at [68]: Based on DHW's presentation at the hearing, we considered that his cognitive deficits would be obvious to any professional person involved in a proposed mortgage or sale of DHW's properties and it would be clearly unwise for them to allow these to proceed on the basis of his instructions.
The Tribunal made it clear when making this finding that it was based on DHW's presentation at the hearing on 15 December 2017. That presentation was described in detail in the Tribunal's decision.
According to DHV, this finding was against the weight of evidence. That evidence included the evidence of Dr C, a neurologist who had been treating DHW for 14 years. The Tribunal accepted Dr C's opinion, expressed in a report dated 16 August 2017, that DHW has mixed Alzheimer's and vascular dementia which is mild and progressing slowly. Dr C also expressed the view that DHW is capable of making informed decisions about his financial affairs. Two solicitors, Mr K and Mr A, were satisfied on 26 August 2017 and 5 December 2017 respectively that DHW was capable of instructing them.
At paragraphs [29] to [35] the Tribunal explained in detail how it reached the conclusion that DHW was incapable of managing his financial affairs. We do not understand DHV to be challenging that finding. Rather, DHV is questioning the Tribunal's finding that DHW's incapacity would be obvious to any professional person involved in a proposed mortgage or sale of DHW's properties. Neither Mr K nor Mr A considered it obvious that DHW could not give them instructions.
We agree with DHV that this finding was made despite probative evidence to the contrary. But making that finding was not an error that was "plain and readily apparent". Based on their own observations of DHW, the Tribunal considered that DHW's incapacity would be obvious to other professionals. More significantly, the finding was not central to the Tribunal's decision. At [66] the Tribunal found that the there was "no current risk that DHW's properties will be sold or mortgaged to assist DHX". Given that there was no current risk of that happening, there was no need for the Tribunal to go on to consider whether other factors mitigated the risk.
The second finding of fact was made at [69]: We also considered that, given our finding that DHW lacks capacity to manage his financial affairs, DHX is aware that her father's capacity to understand and execute any documents dealing with his property is extremely doubtful.
DHV pointed out that during the hearing DHX had made numerous references to the fact that her father had the ability to manage his own finances (examples are set out at transcript page 38, line 30 and p 37 line 40). We infer that the Tribunal concluded that DHX was aware of the limitations in her father's capacity on the basis of the evidence her father gave at the hearing. Again, we agree with DHV that this finding was made despite probative evidence the contrary. But, even if this finding was clearly mistaken, it was not central to the Tribunal's decision. Given that there was no current risk that DHW's properties will be sold or mortgaged to assist DHX, there was no need for the Tribunal to go on to consider whether other factors mitigated the risk.
The third finding of fact was made at [53]: We also decided that their concerns about DHW's transfer of his half of the … property to DHX in 2014 were not sufficient to satisfy us that DHW now needs a financial manager. There was no evidence that DHW lacked capacity at that time to make his own decision about the transfer price.
The finding that DHW had capacity at the time to transfer his share of the property to DHX was based on the presumption of capacity that applies to any adult. DHV did not point to any evidence that DHW lacked capacity at the relevant time. The Tribunal's finding was not "clearly mistaken" nor was it an error that was "plainly and readily apparent".

Orders 1. Leave is refused for the Appellant to appeal on grounds other than questions of law. 2. The appeal is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar

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: 25 July 2018

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Judgment (11 paragraphs)

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