FPA v NSW Trustee and Guardian [2023] NSWCATAP 257 | Case summary

NCAT Appeal Panel|2023-09-08|Before: McCallum JA

Note: The name of each such person includes a reference to any information, picture or other material that identifies them or is likely to lead to identification of them Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Citation: [2023] NSWCATAD 136 Date of Decision: 06 June 2023 Before: J McAteer, Senior Member File Number(s): 2022/00325354

Introduction

In this matter, the NSW Trustee and Guardian (the First Respondent) has decided to sell the home of the protected person and use the funds for the ongoing care of that person. The Appellant is the son of the protected person.
On 6 June 2023, the Tribunal found in response to the Appellant's application for administrative review, that the sale of the property was in the best interests of the protected person and the Tribunal determined that the decision of the Respondent be affirmed.
The Appellant lodged an appeal against this decision on 4 July 2023.
The Second Respondent is the daughter of the protected person and the sister of the Appellant. She has supported the decision of the First Respondent.
For the reasons which follow, we have decided to dismiss the appeal.

Background

The protected person is an 86-year-old widowed woman. Her husband was deceased in July 2019, and she has two children, the Appellant and the Second Respondent.
The proceedings have a long background involving many applications and hearings before the Guardianship Tribunal of the Tribunal and internal appeals to the Appeals Panel of the Tribunal. They have involved the Appellant, and relate to previous orders dealing with enduring powers of attorney and the appointment and then removal of the First Respondent as Financial Manager of the protected person.
The Appellant has objected to many of these orders and feels deeply aggrieved by the way in which the First Respondent is managing the estate of his mother. We acknowledge the genuineness and depth of the feelings of the Appellant in this regard. Nevertheless, the focus of the proceedings before us necessarily must be on the decision of the Tribunal in question and is limited to consideration of whether or not the Tribunal's decision was made in error.
In July 2016, the protected person and her husband entered into a written agreement (Deed) with the Appellant concerning living in each other's respective homes.
The subject property owned by the protected person and her husband at that time was a rural (farming) property in the Gunnedah area. The central parts of the agreement are: (a) no party is required to pay any occupation fee, and (b) as long as the agreement is in force no party can enter into a contract for sale the land of their property. There is a provision that a party can end the agreement with 90 days written notice.
The balance of the background to these proceedings was described by the Tribunal at [9] - [14] as follows: 9 In November 2016 the protected person executed an Enduring Power of Attorney (EPOA) appointing FPA as her Attorney. After the death of FPA's father in 2019 the protected person continued to live in the Gunnedah residence and FPA and his spouse lived at the farm. In recent years the protected person has been diagnosed with a cognitive impairment. As a result FPA began acting as Attorney under the EPOA. Eventually it was necessary for the protected person to leave FPA's Gunnedah residence and move into residential aged care (also in Gunnedah). 10 In June 2020 the Guardianship Division of the Tribunal conducted a review hearing of the EPOA executed by the protected person in November 2016. That review was conducted under the Powers of Attorney Act 2003 (the POAAct). The review determined to proceed under s 37 of the POAAct and treat the application as a Financial Management Application. Section 37 provides: 37 Review tribunal may treat certain applications for review of power of attorney as application for management order 70 If, on a review of the making, revocation or operation and effect of a reviewable power of attorney under section 36, the Civil and Administrative Tribunal decides not to make an order under that section in respect of the power of attorney, it may (if it considers it appropriate in all the circumstances to do so) decide to treat the application for the review as an application for a financial management order under Part 3A (Financial management) of the Guardianship Act 1987. 71 If such a decision is made, the application is taken to be an application for such a financial management order duly made in respect of the principal under that power. 72 If, on a review of the making, revocation or operation and effect of a reviewable power of attorney under section 36, the Supreme Court decides not to make an order under that section in respect of the power of attorney, it may (if it considers it appropriate in all the circumstances to do so) proceed instead as if an application for a declaration and order under section 41 of the NSW Trustee and Guardian Act 2009 had been duly made in respect of the principal under that power. (Emphasis added) 11 The Guardianship Division of the Tribunal committed the protected person's living estate to Financial Management. As a result the EPOA becomes dormant until such time as the Financial Management Order is lifted. Section 50 (3) of the Powers of Attorney Act refers to the EPOA being 'suspended' while the person's estate is under Financial Management. In conducting the review the Tribunal initially appointed FPA as Financial Manager for the protected person. 12 In April 2021 FPM sought a review of the Financial Management order made in June 2020, which appointed FPA. FPM believed that her brother FPA was not a suitable person to be managing their mother's living estate because of a conflict of interest and other matters. The hearing was focused on the issue which is relevant to these proceedings in that once the protected person was in residential aged care, income was needed to ensure that her care fees were met. The protected person had effectively left FPA's home on entry into aged care and was not receiving any benefit from her property (which FPA continued to live in), other than FPA meeting some of the expenses associated with that property such as Council Rates and insurance. 13 The Guardianship Division of the Tribunal made a finding concerning a conflict of interest in FPA living in the protected person's property (largely rent free) and the resultant management strategy adopted by FPA being of greater benefit to him than the protected person. Because the protected person received no rental income under the strategy of FPA then she was required to pay greater accommodation fees than she would otherwise if her asset and income mix was different. The Tribunal decided that the potential strategies I proposals should be examined independently and as a result removed FPA as Financial Manager and appointed the NSW Trustee and Guardian in substitution of FPA as Financial Manager. 14 FPA appealed this decision to the internal Appeal Panel of the Tribunal, who having been unable to find any error of law by the Tribunal below dismissed the appeal on 14 October 2021. No error or relevant matter of the Tribunal misdirecting itself was identified by the Appeal Panel on appeal.

Documents on appeal

The Appeal Panel has received the following submissions and documents relating to the appeal from the parties: 1. Notice of Appeal together with documents received from the Appellant on 4 July 2023; 2. The Appellant also sought a stay of the decision of the Tribunal, and we have his application for a stay. The Appellant filed documents in relation to the stay application on 7 and 10 July 2023. 3. A Reply to Appeal received 13 July 2023; 4. A bundle of documents, received from the Appellant on 14 August 2023; 5. A bundle of documents, received from the Respondent on 29 August 2023; 6. A further bundle of documents, received from the Appellant on 1 September 2023.

The Appeal

Decisions of the Tribunal such as the decision before us are internally appealable decisions and appeals can be made as of right where there is a question of law and, otherwise, with the leave of the Appeal Panel: see, s 80(1) and (2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
The Appellant is appealing both on the basis that the appeal raises a question of law and also seeks leave to appeal.
In Prendergast v Western Murray Irrigation Limited [2014] NSWCATAP 69 at [13] the Appeal Panel set out a non-exclusive list of questions of law.
The principles applicable to the grant of leave were considered by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at [82] - [84].
The notice of orders made by the Tribunal indicates the orders were made on 30 May 2023. On that basis, the appeal is within time as it was lodged within 28 days from when the Appellant was given reasons for the decision as is required by cl 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules).

The grounds of appeal

The Appellant is self-represented, In those circumstances and in accordance with established appeal practice, we will follow the principles set out in Prendergast v Western Murray Irrigation Limited [2014] NSWCATAP 69 at [12] In circumstances where the appellants are not legally represented, it is apposite for the Tribunal to approach the issue by looking at the grounds of appeal generally. It is necessary for the Appeal Panel to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent.
For a grant of leave to be given by the Appeal Panel, the Appellant must demonstrate more than the Tribunal was arguably wrong: see Pohli v Wearne [2014] NSWCATAP 78 at [32].
Ordinarily, it will only be appropriate to grant leave to appeal in matters that involve one of the following matters: 1. Issues of principles; 2. Questions of public importance or matters of administration or policy which might have general application; or 3. 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; 4. A factual error, that was unreasonably arrived at and clearly mistaken; or 5. The Tribunal has gone above 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: see 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].
The Appellant has lodged a voluminous amount of material. He has relied on numerous pieces of legislation, such as the Crimes Act 1900 (NSW). At the hearing, the Appellant was at pains to implore the Appeal Panel to read all of this material and to consider it carefully.
We have done that. Whilst we fully acknowledge the significant efforts the Appellant has gone to put forward all of the matters which he genuinely believes are relevant in seeking to persuade us to overturn the decision, the reality remains that much of that material is not within the purview of our task in reviewing the correctness of the decision under appeal.
As McCallum JA in Mendonca v Legal Services [2020] NSWCA 84 held at [21]: [T]here may be cases in which it is appropriate for the Court to give the correct legal construction to an arguable point poorly articulated by a self-represented litigant. However, the Court is not required to undertake a partisan analysis of lengthy, unstructured assertions and misconceptions with a view to ensuring that a self-represented litigant has not missed some arguable point.
While we accept the Appellant has done the best he can as an unrepresented litigant in difficult circumstances and with genuine and passionate feelings about the matter, the reality is that the description 'lengthy, unstructured assertions and misconceptions' summarises the vast majority of the Appellant's grounds of appeal and written submissions.
We have, however, wherever possible, after carefully reviewing this large amount of material, sought to give a beneficial construction to the grounds of appeal and submissions put forward and attempted where possible to distil the possibly relevant contentions.
Much of the submissions of the Appellant merely indicate a dissatisfaction with the decision and seeks to reargue the case the Appellant ran before the Tribunal originally rather than putting forward appeal grounds.
In Brahmbhatt v Osorio [2023] NSWCATAP 188 at [27] - [28], the Appeal Panel noted that the following matters were important considerations: 1. An appeal to an Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run their case again; and 2. It is not sufficient for an Appellant to disagree with the outcome and to contend that there should have been a different outcome; 3. An appellant must demonstrate either that an error was made on a question of law or that there is a basis upon which leave to appeal should be granted.
In Collins v Urban [2014] NSWCATAP 17 at [84], the Appeal Panel stated, that there must be a 'sound basis' for granting leave to appeal under s 80(2)(b) of the NCAT Act. The Appeal Panel said that an Appellant 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.
In addition, the Appellant in his grounds of appeal has raised complaints about the previous orders made by that Tribunal in respect of his mother and actions of the First Respondent which, in respect of his mother's estate, the Appellant strongly believes the First Respondent has acted wrongly and even corruptly.
Unfortunately for the Appellant, this is not a matter that we can deal with on appeal in this matter. The only matter that is before us is the question of whether or not the decision of the Tribunal to affirm the decision of the First Respondent to sell the Appellant's mother's home should be set aside on a recognisable ground of appeal.
We raised this matter at the hearing with the Appellant and he informed us that the matters nevertheless in his view remain relevant at least as background. We accept this proposition and repeat that we have carefully considered all of the lengthy materials he has provided to us and where such matters could be relevant to providing background to our decision, we have taken that background into account.
In accordance with the principles above, as best as we have been able to understand the submissions of the Appellant, the appeal is on the following grounds: 1. The Tribunal has not taken into consideration all of the Appellant's documents; 2. The Tribunal was biased, and the Respondent and the Tribunal have been corrupt. The Appellant submits that the Tribunal was 'disregarding, whitewashing and concealing relevant facts.' This is frequently put in terms to the Trustee acting 'corruptly' and having 'defrauded the protected person'. 3. The decision was against the weight of evidence because the protected person has ample funds for ongoing care. 4. The Tribunal failed to take into consideration the view of the protected person that she did not want the farm sold and that should have been a paramount consideration. 5. The Tribunal took four months to make the decision after the decision was reserved and that allowed the Tribunal to tamper with the evidence. 6. The Tribunal failed to properly take into consideration the agreement that had been made between the protected person and her now deceased spouse and that resulted into the Tribunal falling into error in relation to the financial position of the protected person.
Six identified grounds of appeal substantially as referred to above were put to the Appellant. After discussion and some revision of the formulation of those six grounds, as reproduced by us above, the Appellant accepted that they did fairly capture the grounds that he was seeking to pursue.
The Appellant did however indicate to us that he did not believe they captured the totality of the points that he wished to make.
We accept that is the Appellant's position. However, in respect of the other points made by the Appellant as we understand, we have dealt with them and referred to them above as not being relevant to our task on appeal from the decision in question.
The Respondent also submitted to us that as far as the Respondent understood the Appellant's appeal, our six grounds of appeal did capture all of the arguable grounds of appeal put forward in the lengthy material and submissions of the Appellant.

The Decision of the Tribunal

Relevantly, the decision of the Tribunal: see FPA v NSW Trustee and Guardian [2023] NSWCATAD 136 included the following sections: 76 In my view whilst the evidence of the parties is at times complimentary and at other times in conflict, I do not assess the weight of FPA's evidence and position as strong. Many of the FPA's points (such as his alternate financial arrangements to fund the protected persons care) are simply not supported by the available evidence. The proposal is broadly contingent on the agreement of FPM which is not forthcoming, nor is she under any obligation or other requirement to agree to FPA's proposed arrangements. 77 FPA himself has taken no steps to generate rental or other income for the protected person. Whilst there was much discussion and informal undertakings from FPA in this regard nothing occurred as a result in a practical manner. Whilst FPA claimed to be 'fixing up' the farm property, the Property Reports, both with high priority and general make good repair quotations and scope of works details, which were commissioned by the Trustee, were not challenged by FPA. … 82 The Trustee made the decision to sell the farm property on 18 April 2022. The Internal Review reached the same conclusion. It noted the Deed but did not engage in any great detail with it in the proposal. Both the existence of the Deed and the decision (proposal at that time), to sell were seen as separate but somewhat related matters. Whilst the Deed could clearly be relied upon to prevent any sale, as the Trustee and the Tribunal have noted, clause 12 provides an orderly system to bring the arrangement under the Deed to an end. At present the Trustee in practice is a party to the Deed by force of the current Financial Management Order. … 85 Consistent with FLC, in applying the principles I find that under s 39 (a) the welfare and interests of the protected person are on balance best served by selling the farm property. The cash flow shortfall will be reduced, and once fully restored, the Centrelink pension will increase to approximately $25,500 per annum. The protected person will no longer be liable for any external property related expenses, some superannuation fees will be reduced and the RAC or RAD contributions can be increased depending on how much is received for the sale. … 96 Turning again to section 39 of the TAG Act, I am satisfied that the sale of the property is now in the interests of the protected person. The evidence indicates that it is in her financial interests, and there are no longer any personal factors relevant to maintaining the property in respect of the protected person. Factors relating to FPA whilst relevant under s 39 (e) must be considered in the totality of the section and the paramount consideration under the Act. I do not doubt the importance of the farm to FPA especially as it was his childhood home and the means of the family's income for many years. 97 On the totality of the evidence I prefer the evidence supporting the sale. … 99 Like FTF In find that the protected persons financial security, when considered as a paramount consideration, would be best served by the sale of the farm property that she owns, and I so find. 100 I find that the sale of the property is now in the best interests of the protected person. 101 On the basis of a consideration of all of the material presented to the Tribunal, I am satisfied that the decision to sell the property is the correct and preferable decision. 102 The first respondent's decision will therefore be affirmed and the application will be dismissed.

Consideration

We turn to the six grounds of appeal identified by us above.
Firstly, in respect of ground 2, we accept that a claim of bias, and even of corruption, may raise a question of law. However, there is nothing in the material that supports the proposition that the Tribunal was biased or corrupt.
The main point in this regard put forward by the Appellant is that the Tribunal reached the decision, which the Appellant strongly believes was wrong and only a biased or corrupt Tribunal could come to such conclusion.
This is put forward by the Appellant by reference to various paragraphs of the decision.
In our view, there is no support in the matters put forward by the Appellant to suggest that the Tribunal was in any way biased, let alone 'corrupt'.
Similarly, in respect of ground 4, the contention that the Tribunal 'tampered' with the evidence is not made out by the Appellant in any of his material or submissions to us and we dismiss this ground of appeal.
In respect of ground 1, the contention that the Tribunal failed to take into consideration, or into proper consideration, all of the Appellant's documents does not raise a question of law. The Appellant in this regard has not raised any issues of principle or matters of public importance or been able to demonstrate that the Tribunal failed to take into account any of the Appellant's documents.
In our view, the Appellant has not demonstrated any basis for the grant of leave in respect of this ground of appeal.
Similarly, in respect of ground 3, the contention that the decision was against the weight of the evidence because the protected person has ample funds for ongoing care, does not raise a question of law.
In our view, the Tribunal carefully considered all of the relevant evidence and the Appellant has been unable to demonstrate that the decision of the Tribunal in this respect was clearly wrong.
Accordingly, in our view, the Appellant has not made out a case for the grant of leave in respect of this ground of appeal.
In respect of ground 5, we note that the Tribunal of its own initiative made phone contact with the protected person and over a period of 15 minutes engaged with the protected person: at [43].
The Tribunal at [43] indicated that in respect of a specific question about selling the farm the protected person told the Tribunal that she 'didn't want the farm sold'. Further, the protected person advised that she wanted the Appellant to look after it.
The Tribunal's Decision at [44] - [45] also included the following: 44 FPA then asked some question of his mother (the protected person) and asked her 'who looks after her'. The answer was 'they do' which the Tribunal inferred to mean the care staff. When asked who comes and visits the answer was 'me'. When FPA asked who pays the bills the protected person answered that her son (FPA) and daughter (FPM) do. The protected person reiterated that she did not wish to sell the farm. 45 FPM then asked some questions of her mother. When asked how (FPA) is paying money and whether he pays to live on the farm no meaningful response was forthcoming. The protected person was asked in a different way whether FPA pays the protected person to live there. FPM came from a slightly different angle and asked the protected person whether FPA pays for her accommodation at the nursing home. The protected person answered that as far as she 'knew it (FPA) or (FPM) usually sorts it out'. The protected person concluded her unsworn evidence by stating that 'usually (FPA) sorts things out'.
The Tribunal then stated the following at [88]: 88 The s 39 (d) principle concerning the protected person's views are noted. The protected person clearly outlined her view to the Tribunal that she did not want the farm sold. However having regard to the protected person's diagnosis, the fact that no party in these proceedings saw fit to advise the protected person of the proposal and subsequent proceedings before the Tribunal, and the protected person's lack of understanding of the context in which the questions were put to her in the proceedings, I find that this provision is of little weight when having regard to the paramount consideration. The protected person's interests are significantly served by meeting her necessary care needs and quality of life.
In our view, there is no basis for a contention that the Tribunal failed to take into consideration the views of the protected person.
Whilst the failure to take into consideration the views of the protected person being a requirement under s 39(d) of the Guardianship Act 1987 (NSW) may give raise to a question of law. There is no basis for the contention that the Tribunal failed to take into account such consideration.
Accordingly, we reject this ground of appeal.
In respect of ground 6, the Tribunal held the following at [80] - [82]: 80 FPA had initially engaged legal representation in his dealings with the Trustee. The ultimate position of the Trustee being that as the Financial Manager of the protected person, they could invoke cl 12 of the Deed and provide a 90 day notice period for the deed to be extinguished and FPA give up possession of the property. 81 Whilst FPA may have enforceable rights under the Deed, he would need to explore those rights and challenge the actions of the Trustee before a Court if agreement could not be reached. In my view the Tribunal has no direct jurisdiction in respect of the Deed, and because of the making of the Financial Management Order in its most recent form by the Guardianship Division of the Tribunal, the Trustee effectively becomes the protected person for the purposes of any action under the Deed. By inserting cl 12 into the Deed the parties to the Deed clearly contemplated that it was possible the arrangement might need to come to an end in their lifetime and as such provided a fair and orderly method (with three months' notice) for such an outcome to take place. 82 The Trustee made the decision to sell the farm property on 18 April 2022. The Internal Review reached the same conclusion. It noted the Deed but did not engage in any great detail with it in the proposal. Both the existence of the Deed and the decision (proposal at that time), to sell were seen as separate but somewhat related matters. Whilst the Deed could clearly be relied upon to prevent any sale, as the Trustee and the Tribunal have noted, clause 12 provides an orderly system to bring the arrangement under the Deed to an end. At present the Trustee in practice is a party to the Deed by force of the current Financial Management Order.
In our view, there is no basis for the contention that the Tribunal failed to take properly into consideration the Deed between the protected person and her now deceased spouse and the Appellant, which led the Tribunal into error in relation to the financial position of the protected person.
This does not raise a question of law and there is no basis for the ground of leave to appeal.
Accordingly, we reject this ground of appeal.
We note that the Second Respondent agreed with the orders of the Tribunal and did not make any further submissions to the Appeal Panel.

Conclusion

Leave to appeal will be refused and the appeal will be dismissed.
We note that the First Respondent did not seek costs.

Disposition

The orders of the Appeal Panel are: 1. Leave to appeal is refused. 2. Appeal dismissed.
The stay order continued by the Appeal Panel on 14 July 2023 in relation to the sale of the protected person's home is lifted

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 September 2023

FPA v NSW Trustee and Guardian

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