QP v RP

[2014] NSWCATAP 59

NCAT Appeal Panel|2014-08-28

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Court

NCAT Appeal Panel

Decision date

2014-08-28

Source

Original judgment source is linked above.

Judgment (13 paragraphs)

[1]

Introduction 1RP is an elderly man who lives in his own home. His son, QP, and his daughter ST, both live nearby. QP has appealed against a decision of the Guardianship Division of the Tribunal ('the Tribunal') appointing his sister and her husband TT jointly as his father's financial managers. He has not appealed against the Tribunal's decision to appoint ST and TT as his father's guardians. QP wants the Appeal Panel to amend the financial management order so that he can participate in the management of his father's financial affairs. 2In a submission to the Appeal Panel, he stated that he wants to be able to . . . monitor [his] father's actions and all work being executed by ST and TT in their delegated positions. 3The Appeal Panel does not have power to make an order of that kind. Under s 25M of the Guardianship Act 1987 (NSW), if the Tribunal makes a financial management order it may appoint either a 'suitable person' to manage that estate or commit the management of the estate to the NSW Trustee. 4We agree with the Tribunal's view, expressed in BEX (2012) NSWGT 11 at [34] that although the Guardianship Act refers to a 'suitable person', the Tribunal can appoint more than one suitable person to manage an estate: Interpretation Act 1987 (NSW), s 8(b). The Tribunal has no power to make an order appointing an individual, such as QP, to monitor or supervise the management of a person's estate. If a 'suitable person' is appointed, that person is subject to the direction of the NSW Trustee and Guardian: NSW Trustee and Guardian Act 2009 (NSW), s 66. 5At the hearing, QP amended his appeal by agreeing that the order he is seeking is that he, his sister and her husband jointly manage his father's financial affairs. 6QP has the right to appeal on a question of law but must obtain the Appeal Panel's permission or 'leave' to appeal on any other ground: Civil and Administrative Tribunal Act 2014 (NSW) (NCAT Act), s 80(2)(b). We have decided that the Tribunal made its decision according to law and there is no other reason why the decision should be changed.

[3]

Tribunal's decision in relation to financial management 9The Tribunal appointed ST and TT jointly as RP's financial managers, subject to the directions and authorities of the NSW Trustee and Guardian. The Tribunal decided not to carry out a review of the enduring power of attorney made by RP on 22 November 2013 which appointed QP as attorney. 10In accordance with s25G of the Guardianship Act, 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 his or her own affairs and is satisfied that: (a)the person is not capable of managing those affairs, and (b)there is a need for another person to manage those affairs on the person's behalf, and (c)it is in the person's best interests that the order be made. 11The Tribunal was satisfied as to each of those matters and none of the grounds of appeal relate to those findings. In summary, the Tribunal found that RP was incapable of making an appointment under the Enduring Power of Attorney and that there was no existing Enduring Power of Attorney in operation. On this basis, the Tribunal found that there was no 'clear, legally authoritative and satisfactory way for [RP's] financial affairs to be managed now that he is unable to arrange that himself.' In light of the conflict between QP and ST, there was a need for external scrutiny of RP's affairs. 12The Tribunal then considered who should be appointed as financial manager. The separate representative suggested that ST and her husband, TT, be appointed jointly. ST and TT agreed. Although QP indicated in his submissions to the Tribunal that he should continue to manage his father's financial affairs, the Tribunal noted in its reasons that QP 'indicated that he no longer wanted to be involved in his father's affairs' and left the hearing prior to its conclusion. According to the Tribunal, it was for that reason that his views about being appointed as financial manager could not be canvassed. In those circumstances the Tribunal did not consider him for appointment to that role. 13The Tribunal found that ST was close to her father and, together with her husband TT, had given him great assistance. As the manager of a hospital, the Tribunal found that TT would have the skills to manage an estate of the size and complexity of RP. The Tribunal was satisfied that neither the financial affairs of ST nor TT were entwined with those of RP. 14Taking into account these matters, the Tribunal was satisfied that ST and TT had the advantages of family members as set out in Holt v Protective Commissioner (1993) 31 NSWLR 227 and were suitable persons to be appointed jointly as financial managers for RP, subject to the supervision of the NSW Trustee and Guardian.

[6]

Leave to appeal 18QP seeks leave to appeal on the following "other grounds": (1)At the time of the hearing RP was not able to understand the questions that the Tribunal members were asking him nor was he able to respond in a reliable manner. For that reason the Tribunal should not have relied on his views. (2)The presiding member was mistaken in her view that QP left the hearing before the end of the proceedings. If he did leave prematurely he did not hear about any other options available to him. (3)The Tribunal did not address QP's complaint against the separate representative for RP, prior to the hearing. (4)ST and TT put forward erroneous information. (5)Events which have occurred since the hearing indicate that his father's views have changed. 19The NCAT Act does not provide any guidance as to the considerations that are relevant when determining whether to grant leave. Those principles must be derived from other sources including the objects of the Act and the nature of the appeal. The guiding principle when interpreting the legislation "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings": NCAT Act, s 35. 20In K v K (2000) NSWSC 1052, a case which dealt with an appeal from the former Guardianship Tribunal, Young J observed in relation to the granting of leave at [15] that: . . .it is very unlikely that the Court will grant leave to appeal when there is a problem with a fact finding exercise unless there are clear indications that the Tribunal has gone about that fact finding process in such an unorthodox manner or in a way which is likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. 21The Appeal Panel has recently considered the principles which generally guide the consideration of whether leave to appeal should be granted under s 80(2) of the Act: see Collins v Urban [2014] NSWCATAP 17. At [84] the Panel summarised the principles (citations deleted): (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing

[11]

Events since the Tribunal's decision 34QP submitted that since the Tribunal hearing his father has changed his mind about having ST and TT as his financial managers. This submission appears to relate to RP being unable to contact ST on several occasions and RP's understanding that he remains able to manage his own affairs. 35In referring to subsequent events, the Appeal Panel assumes that QP is applying for the admission of further or fresh evidence. The authorities make it clear that any such evidence must relate to the Tribunal's decision at first instance and must be evidence which was relevant at that time to that decision. In Building Professionals Board v Hans (2008) NSWADTAP 13, the Tribunal stated at [54]: If the Appeal Panel is to exercise its discretion in favour of the party applying for leave - and I interpolate that that is leave to adduce further evidence - it 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. 36The Court of Appeal reached the same conclusion in Gianoutsos v Glykis(2006) NSWCCA 137. The Court reviewed the decisions in relation to the admissibility of further or fresh evidence and quoted at [37] the principle set out in CDJ v VAKJ (1998) 197 CLR 172, 201-202. As in that case, this appeal is not a hearing de novo. For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error. 37It is the decision at first instance that the Appeal Panel must examine. It is not relevant to an examination of that decision whether the circumstances have changed since that time. The information put forward by QP in support of this ground is not evidence which was relevant to the Tribunal's decision at that time. It is simply information in relation to the assertion that, since the hearing, RP has changed his mind as to how he wishes his affairs to be managed. On this basis, the Tribunal finds that the information should not be admitted on appeal. Leave to appeal on this ground is refused.

QP v RP

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Judgment (13 paragraphs)

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