P v NSW Trustee and Guardian

NCAT Guardianship|2018-02-21

INTERLOCUTORY APPLICATION REGARDING SECTION 64 OF THE CIVIL AND ADMINISTRATIVE TRIBUNAL ACT 2013

Background

Mrs QFC is a 78-year-old woman who lives in her own home in regional NSW. She has five children, Ms TAC, Mr EZC, Ms RBC, Ms BYC, and Ms LXD. There is conflict within the family. On 19 February 2010, Mrs QFC appointed Mr EZC and Ms RBC to be her attorneys, under an enduring power of attorney instrument. On the same day Mrs QFC appointed Mr EZC and Ms RBC to be her enduring guardians.
On 1 November 2017, the Tribunal received an application from Ms TAC for the appointment of a financial manager for her mother.
On 20 December 2017, the Tribunal constituted by myself, Jill Moir, Senior Member (Legal), sitting as a single member, conducted an interlocutory hearing and made orders regarding the date of the substantive hearing, and directed the parties to produce information and documents by a date agreed to by the parties. The directions related in part to documents regarding Mrs QFC's financial situation.
On 18 January 2018, the Tribunal received an application from Ms TAC for review of the operation and effect of the enduring power of attorney instrument.
I conducted a further interlocutory hearing on 23 January 2018 and made further orders in relation to these applications. The hearing that had been set down in the orders arising from 20 December 2017 was adjourned on Mrs QFC's request and the date for compliance with the directions was extended for a period consistent with Mrs QFC's request.

Written statement of reasons for decision

In accordance with s 64(1)(b) of the Act, a decision under s 64 of the Act is an "interlocutory decision", as it is a decision relating to the prohibition or restriction of the disclosure, broadcast or publication of matters. Part 4, of Sch 6 of the Act, provides that in exercising its substantive functions, the Tribunal must generally be constituted by three members with particular qualifications. However s 27 of the Act and the note to pt 4 of Sch 6 of the Act, taken together, provide that the Tribunal can be constituted by a single member in relation to interlocutory matters. Section 11 of Sch 6 of the Act provides that in the Guardianship Division of the Tribunal, written statements of reasons are generally to provided. However in accordance with s 11(2)(c) of the Act, if the Tribunal is constituted by less than three members, a written statement of reasons is not required for interlocutory decisions.
Even though this decision is an interlocutory decision made by a single member, I have decided to provide written reasons for my decision.

The substantive applications

The substantive applications have yet to be heard or determined. However in summary, Ms TAC has raised concerns about the way in which Mrs QFC's liquid funds have been invested, given her age and life circumstances. She says that her mother has become forgetful, is vulnerable to influence and suggests that she may have some signs of dementia. Ms TAC has identified from publicly available information that her mother has invested the bulk of her liquid funds (a substantial sum of money) in shares in a private company called Company XYZ. She indicates that her mother is easily influenced by Mr EZC. She says Mr EZC has his own interests in Company XYZ, including being a shareholder and employee, and that his family also have interests in this company. The concerns she raises relate to both whether the nature of the investment itself is appropriate and in her mother's best interests, and to whether as attorney, Mr EZC has gained a benefit from encouraging and arranging for his mother to make these investments. Amongst other documents, in support of her applications Ms TAC provided copies of documentation confirming share ownership by Mrs QFC, Mr EZC, and his family.

Relevant Law

Section 64 of the Act provides as follows: 64 Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders: (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), (b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings. (2) The Tribunal cannot make an order under this section that is inconsistent with section 65. (3) The Tribunal may from time to time vary or revoke an order made under subsection (1). (4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.
The orders sought relate to s 64(1)(d) of the Act which differs from the other subsections in that it relates to withholding evidence from parties to the proceeding, who would, in the absence of an order, have a right to all of the evidence. Section 64(1)(d) of the Act provides a discretion for the Tribunal to make an exception to the usual processes.
Section 38 of the Act provides that the Tribunal may determine its own procedure in relation to any matter which is not specifically provided for by the Act or the procedural rules, is not bound by the rules of evidence (with some exceptions contained in s 36(3) of that Act which are not relevant to this decision) and can inquire into and inform itself in such matter as it thinks fit, subject to the rules of natural justice. Paragraph 9 of the New South Wales Civil and Administrative Tribunal Guardianship Division Guidelines - Confidentiality, privacy and publication (August 2017), provides that in general all parties to proceedings have access to all of the documents held in relation to the case in which they are involved. In general, ensuring that all parties are aware of (and therefore have an opportunity to respond to) the evidence in a particular case is entirely consistent with the accepted rules of natural justice.
Section 3 of the Act sets out the objects of the Act which include at 3(d), (e), (f), and (g) to enable the Tribunal to resolve the "real issues" in proceedings justly, quickly, cheaply and with as little formality as possible; to ensure that the decisions of the Tribunal are timely, fair, consistent and of a high quality; to ensure that the Tribunal is accountable and has processes that are open and transparent; and to promote public confidence in Tribunal decision-making and in the conduct of Tribunal members.
Section 36 of the Act states that the guiding principle to be applied to the practice and procedure of the Tribunal is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. The Tribunal must seek to give effect to the guiding principle when exercising any power given to it by the Act or the procedural rules or when interpreting any provision of the Act or the rules. Parties to the proceedings in the Tribunal and their representatives are also under a duty to cooperate with the Tribunal to give effect to the guiding principle.
Section 38(4) of the Act provides that the Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case, without regard to technicalities or legal forms. Section 38(6)(a) of the Act provides that the Tribunal is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings.
Schedule 6 of the Act contains provisions specific to the Guardianship Division. Section 5 of Sch 6 of the Act requires the Tribunal when exercising its functions in relation to persons with disabilities under the Guardianship Act 1987 (NSW) to observe the principles contained within s 4 of the Guardianship Act as well as the provisions of s 36 of the Act. Section 4 of the Guardianship Act contains the principles of the Act, as follows: 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.
Part 3A, div 1 of the Guardianship Act provides that the Tribunal can make financial management orders and the circumstances in which this can occur. Specifically, s 25G of the Guardianship Act states that the Tribunal may make a financial management order in respect of a person, only if the Tribunal has considered the person's capability to manage their own affairs and is satisfied that they are not capable of managing those affairs; and that there is a need for another person to manage those affairs on the person's behalf; and that it is in the person's best interests that the order be made.
Part 5, div 4 of the Powers of Attorney Act 2003 (NSW) provides the basis on which the Tribunal is able to review enduring powers of attorney. Section 36 of the Powers of Attorney Act relevantly provides that on the application of an interested person, the Tribunal has a discretion whether or not to review the operation and effect of an enduring power of attorney. If the Tribunal decides to conduct a review the Tribunal may (or may not) decide to make orders under ss 36(3) and 36(4) of the Act. When considering an application to review an enduring power of attorney, there is no requirement that the Tribunal be satisfied that the principal (who executed the enduring power of attorney) is incapable of managing their financial affairs or indeed, has any level of decision-making impairment. The Powers of Attorney Act otherwise contains provisions regarding the requirements for the conduct of attorneys. The range of orders open for the Tribunal to make under s 36(4) of the Act indicate that the performance and conduct of an attorney are relevant to the Tribunal's consideration of whether to conduct a review, make orders, and which orders to make.

Submissions

In the directions of 23 January 2018 I relevantly directed as follows: 5) [Mrs QFC] is to give the Tribunal her income tax returns for the financial years 2015/2016 and 2016 /2017...; 6) ...[Mrs QFC] or her attorneys are to give the Tribunal the following documents: a. details of her current assets and investments, including the value of those assets and investments and a breakdown of the income derived from these; b. a copy of any financial plan which has been prepared for her in the previous five years; c. any documentation she, or her attorneys hold on her behalf, regarding the terms of her investment with [Company XYZ], including the basis on which she is paid a return on investment (e.g. interest, dividends, fixed income); the process by which this income is paid to her; and the terms under which she is able to liquidate the funds she has invested. 7) ...the attorneys are to provide statements and supporting records of all actions they have taken as attorneys for [Mrs QFC] in the previous three years and a statement regarding all advice they have provided to her regarding her financial investments at that time.
In the directions of 21 February 2018 I relevantly directed as follows: (1) By 28 February 2018 [Mr EZC] is to provide to the Tribunal and his mother's legal representative, Margaret Pringle with complete copies of each of the three documents containing the terms of the convertible notes [Mrs QFC] holds with [Company XYZ].
In his written submission of 15 February 2018, Mr Robinson submits that Mrs QFC does not want any of the evidence regarding her financial situation disclosed to Ms TAC. He submits that in dealing with an application for a financial management order, the question of whether a person has a "disability" within the meaning of s 3(2) of the Guardianship Act is a threshold issue. If the Tribunal cannot be satisfied of this, then the grounds for making a financial management order under s 25G of the Guardianship Act cannot be satisfied. He notes that Mrs QFC has provided reports from her general practitioner, Dr Z, dated 12 January 2018 and geriatrician Dr Y, dated 7 February 2018. Mr Robinson refers to statements in those reports and concludes that based on these there is no evidence that Mrs QFC has a "disability" and is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation.
He submits that Ms TAC has not provided any evidence in support of her contention that Mrs QFC has a decision-making disability. He submits that questions asked by Ms TAC in a statement she provided to the Tribunal demonstrate that the application is "little more than a fishing expedition on her part".
Mr Robinson submits that in light of the available evidence, it is not available to the Tribunal to make a finding that Mrs QFC suffers from a disability within the meaning of s 3(2) of the Guardianship Act. To require the disclosure of financial documentation to a third party in circumstances when there is no evidence of disability would not be consistent with the objects in s 3 of the Act or the guiding principle in s 36 of the Act. He submits that an order requiring the disclosure of the documentation to Ms TAC would not be consistent with the principles contained in s 4 of the Guardianship Act. He does not explain the basis for the inconsistency he asserts. He states that the Tribunal has a duty under the s 4 principles of the Guardianship Act to have regard to Mrs QFC's clear determination to exclude Ms TAC from management of her financial affairs.
At the hearing, Ms Pringle submitted that the basis for an order to be made under s 64(1)(d) of the Act is that Mrs QFC is a capable person and she wishes to maintain privacy about her own financial affairs. Essentially she restated Mr Robinson's submission that there is no evidence that Mrs QFC has a decision-making incapacity. As such her wishes to maintain privacy around her financial information should be respected.
I noted that in addition to the application for a financial management order there is the application to review the enduring power of attorney. The question of Mrs QFC's decision-making capacity or incapacity is not a threshold question in relation to that review. In response, Mrs Pringle submitted that as Mrs QFC is still capable, she is able to make changes herself to the enduring power of attorney if she chooses. On this basis there is no need for the Tribunal to review the enduring power of attorney.
Mrs QFC told me that she is distressed by these applications. She does not understand why the Tribunal or her daughter, Ms TAC, does not believe her that her attorneys are doing a wonderful job. She confirmed that she wants her information kept private and not to be broadcast "to the whole world". I put to her that this was not about her private information being broadcast to the world but instead being given to her daughter, and in response Mrs QFC expressed that she wished that her daughter Ms TAC would just believe her.
Mr EZC and Ms RBC both asserted that Mrs QFC is clearly saying that she does not want her financial documents disclosed and that her wishes should be respected. She has always been a private person and has not readily shared her financial information in the past.
Ms TAC told the Tribunal that she is not personally too concerned about seeing the financial information, as she sees that the Tribunal has a role in reviewing that evidence. However, she felt that it could be of benefit to the Tribunal if she could review the documents, because she is familiar with financial matters and may be able to raise questions or concerns which would assist the Tribunal with its enquiry. Ms Pringle objected and said that it was not Ms TAC's role to assist the Tribunal in this way.
In her application Ms TAC indicates that despite the assertion that her mother has always been very private about disclosure of her financial affairs she has, in fact, assisted her mother with financial matters in the past, specifically selling a water licence, which she asserted was the source of much of her mother's liquid assets.

Decision

I carefully considered the submissions from Mr Robinson and Ms Pringle and Mrs QFC's wishes, which were supported by her attorneys. I also considered Ms TAC's views, and the role and purpose of the Tribunal. This involved weighing up and balancing of a number of competing important issues.
I must note that what is being sought is an order to prohibit disclosure of evidence which would ordinarily be available to the parties, and not an order to allow disclosure of evidence. Disclosure of the evidence to Ms TAC as a party to the proceedings is the usual process of the Tribunal and an order that evidence not be disclosed is an exception to this. Section 64 of the Act clearly states that the order sought can be made in the event that I am satisfied that it is "desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason". In this case the submission is that the information is confidential, as it relates to her private financial affairs, and that Mrs QFC does not want it disclosed to Ms TAC.
In relation to the submission that there is no evidence that Mrs QFC has a disability and therefore her wishes should be given priority, I note that the question of whether Mrs QFC is a person who is not capable of managing her own financial affairs is a matter to be determined by the Tribunal panel at the substantive hearing. Whilst the medical reports that have been provided both state that Mrs QFC does not have dementia, and is "cognitively intact", this is not the only consideration when determining if a person is incapable of managing their own financial affairs.
In PB v BB [2013] NSWSC 1223, Lindsay J confirmed that the question of whether a person is "incapable of managing their financial affairs" focuses attention on the special circumstances of the person. His Honour stated, at [7]: Of central significance is the functionality of management capacity of the person said to be incapable of managing his or her affairs, not: (a) his or her status as a person who may, or may not, lack "mental capacity" or be "mentally ill"; or (b) particular reasons for an incapacity for self-management.
The test for determining a person's capability to manage his or her affairs has been described as follows (P v NSW Trustee and Guardian [2015] NSWSC 579, [307]-[308]): Is a person reasonably able to manage his or her own affairs in a reasonably competent fashion, without the intervention of a [financial manager] charged with a duty to protect his or her welfare and interests? … [A] focus for attention is whether the person is able to deal with (making and implementing decisions about) his or her own affairs (person and property, capital and income) in a reasonable, rational and orderly way, with due regard to his or her present and prospective wants and needs, and those of family and friends, without undue risk of neglect, abuse or exploitation.
Ultimately the question of whether Mrs QFC is incapable of managing her own financial affairs is a question which must be considered and determined at the substantive hearing and ought not be pre-empted by an interlocutory decision.
The principles set out in s 4 of the Guardianship Act relate to the Tribunal's duties towards people with disabilities. They provide a list of important matters to be considered which are not necessarily consistent with each other. Putting aside the assertion that Mrs QFC does not have a disability, as the subject person of an application made under the Guardianship Act, in my view the Tribunal has a duty to observe the principles in relation to her, it is notable that the principles do not say that the views of the person are paramount. Instead the welfare and interests of the person are paramount, and the person's views are just one of the matters which are to be taken into account. Additionally whilst the person's freedom of decision making and freedom of movement should be restricted as little as possible, this must be balanced with the obligation to protect such persons from neglect abuse and exploitation. There has been no determination as yet about whether Mrs QFC is a person to whom the Guardianship Act might apply, but given that she is a person about whom an application has been made, with allegations of financial exploitation, the principles of the Guardianship Act must be balanced with paramount regard to her welfare and interests. These are potentially broader considerations than her views alone. In addition to this, the s 4 principles of the Guardianship Act do not apply to the Tribunal's jurisdiction under the Powers of Attorney Act.
In addition to the application for a financial management order, there is an application for a review of the enduring power of attorney which as indicated before does not require the Tribunal to make any findings in relation to Mrs QFC's decision-making capacity. Of course as Ms Pringle indicated if the principal in an enduring power of attorney has decision-making capacity then it is open to them to make their own choice about changes to that instrument if, for example, they are concerned about the conduct of their attorney. This may well be relevant to the Tribunal in deciding whether or not to conduct a review or whether to make any orders, but again these are decisions which must be made by the Tribunal panel at the substantive hearing and not by me at an interlocutory hearing. Therefore the assertion that the Tribunal has no role in conducting a review of the enduring power of attorney is not conclusive, and does not provide a basis to prohibit disclosure of the evidence.
In relation to the allegation that Ms TAC is simply on a "fishing expedition", I note that the matters that she has raised in her applications are significant, have some evidentiary basis and warrant careful consideration. Taken at their highest, her allegations could amount to financial elder abuse. Whether there is a sound basis to these allegations is a matter which needs to be considered and determined by the Tribunal panel at a substantive hearing. But it is not possible to do this without the further financial information which could only be provided by Mrs QFC or her attorneys. The evidence that has been sought and obtained by the Tribunal is much narrower than the evidence that Ms TAC requested. Whether or not the breadth of the information she was seeking should be characterised as a fishing expedition is not in my view a reason to prohibit her access to the much narrower evidence which has been obtained.
The terms of s 64(1)(d) of the Act are such that an order prohibiting the disclosure of the financial information provided relates to the documents and the contents of documents. This means that an order under s 64(1)(d) of the Act would prohibit disclosure of the documents, as well as discussion of that evidence at the hearing, if Ms TAC was present. Potentially this would mean that Ms TAC would have to be excluded from the hearing whenever there was discussion of Mrs QFC's financial situation. Given the nature of the applications, this would be the bulk of the hearing. This would be a very significant departure from the Tribunal's usual practice, and in my view would seriously impinge on the Tribunal's obligation to conduct its processes fairly and transparently and with regard to natural justice.
As stated earlier the Tribunal has the responsibility to focus on the real issues in any particular case. Broadly speaking the Guardianship Division of the Tribunal operates under an inquisitorial model, rather than an adversarial model. This means that the Division identifies the issues and takes an active role in questioning the parties and the evidence. However, the Division is still obliged to conduct itself without actual or perceived bias.
Ms TAC has raised concerns and questions regarding the arrangement of Mrs QFC's investments and the conduct of her attorneys which bear further consideration. If Ms TAC is not allowed access to the financial information at issue, nor able to participate in any portion of the hearing in which this evidence is discussed, I see two significant problems which are likely to hinder the Tribunal in discharging its duties. Firstly the Tribunal would not have the opportunity to hear Ms TAC's evidence and submissions in relation to the financial evidence. This would conflict with the Tribunal's obligation under s 38(6)(a) of the Act to ensure that all relevant material is disclosed so as to enable it to determine the relevant facts. Given Ms TAC's knowledge of her mother and the history prior to these proceedings, as well as her familiarity with financial matters, her views are likely to be relevant to determination of the facts.
Secondly, as the applicant, it is open to Ms TAC to raise questions regarding the evidence and make submissions. However if the financial evidence is withheld from her, the burden of examining and questioning this evidence would fall entirely on the Tribunal. In my view this could reasonably raise concerns in the minds of the other parties about the Tribunal's impartiality in this matter. In short I considered that not allowing the applicant access to the evidence that has been submitted would hinder the Tribunal in its obligation to facilitate the just and fair resolution of the real issues in the case.
On balance, therefore, despite Mrs QFC's wishes, but because of the potential impediment to the Tribunal performing its statutory duties, I am not satisfied that it is desirable to make an order to prohibit or restrict the disclosure of the financial evidence provided in response to directions no. 5, 6, and 7 of my orders and directions dated 23 January 2018, or direction no. 1 of my orders and directions of 21 February 2018 to any of the parties in these applications.
Having regard to Mrs QFC's concern for privacy, I also directed that the parties (other than her) not disclose this evidence to anyone else.

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: 12 April 2018

At a glance

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Decision date

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Judgment (8 paragraphs)

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Legislation Cited (3)

Cases Cited (2)

Cited By (1)