XDX [2014] NSWCATGD 38

NCAT Guardianship|2014-10-20|Before: Redfern J

What the Tribunal decided 1The Tribunal dismissed the application to set aside/vary the decision made on 29 July 2014 to commit the estate of Ms XDX to the NSW Trustee and Guardian for management.

Background 2Ms XDX is a 96-year old woman who is a permanent resident of a nursing home in Southwest Sydney. She has had numerous admissions to other residential care facilities and multiple hospital admissions. She is said to be diagnosed with dementia with paranoia and challenging behaviours and multiple medical conditions. Ms XDX speaks Cantonese. 3Ms XDX is widowed and has five children: Ms TBT, Ms DCN, Mr NET, Mrs BFL and Mr UMT. Four of Ms XDX's children live in Sydney and Mr NET lives in the United States of America. 4According to reasons for decision for the orders made on 29 July 2014, Ms XDX executed an enduring power of attorney on 22 October 2010, which appointed Mr NET and Mr UMT as her attorneys to act on a joint and several basis. She also executed an enduring power of attorney and enduring guardian document on 22 December 2013, appointing Ms DCN as her sole attorney and enduring guardian. The later enduring power of attorney was revoked on 5 February 2014. 5On 20 March 2014 the Tribunal received an application from Ms DCN for guardianship and financial management orders to be made for Ms XDX. On 26 June 2014 Mr UMT made an application for a guardian to be appointed for Ms XDX and on 24 July 2014 made a further application for a review of the enduring guardianship appointment. 6All applications were listed for hearing on 29 July 2014. 7On 29 July 2014, the Tribunal committed the estate of Ms XDX to the NSW Trustee and Guardian for management and adjourned the applications for guardianship and for the review of the enduring guardianship appointment for a period of two months. 8On 1 August 2014, received by the Tribunal on 5 August 2014, Mr UMT and Mr NET made application for the order made for the Tribunal in respect of the financial management application to be set aside. 9On 12 August 2014 the Tribunal directed the parties to file and serve any submissions in respect of the application and the matter was listed for hearing.

The Hearing 10At the end of these Reasons for Decision are lists of the parties to the application and witnesses who attended the hearing [details removed for publication]. 11Ms XDX did not participate in the hearing and, as noted in the previous reasons for decision of the Tribunal, there was no dispute between the parties that the proceeding should continue in Ms XDX's absence given her advanced age and significant medical conditions. 12Ms DCN and her son, Mr NCN, the grandson of Ms XDX, attended the hearing in person. Mr UMT provided written submissions to the Tribunal dated 13 October 2014 and notified the Tribunal prior to the hearing date that he would not be attending and would rely on his written submissions because he was unable to get the time off work. 13Mr UMT was telephoned at the commencement of the hearing to confirm whether he wished to participate. After initially declining, 14Mr UMT subsequently telephoned the Tribunal and participated in the balance of the hearing by telephone. When questioned about the reasons for his non-attendance at the hearing, Mr UMT stated that he preferred to make his submissions in writing and he was unwell. While he stated one of the reasons for his non-attendance was that he was unable to get leave, Mr UMT later stated that leave had not been refused by his supervisor. He did not seek an adjournment of the hearing. 15Mr NET declined to participate in the hearing. On the morning of the hearing, the Tribunal received an e-mail from Mr NET to the following effect: This is to inform you that I will not be able to participate the October 20, 2014 set aside hearing due to my health. However I fully support and mirror what were brought up in [Mr UMT], my younger brother's submission and I have read the attached files you forwarded to me and that the Tribunal should review and reconsider the interim decision imposed by the Tribunal. 16On 17 October 2014, the Tribunal received a report from the NSW Trustee and Guardian providing details in relation to Ms XDX's estate. In summary, the report recorded Ms XDX's assets as savings of approximately $31,000, three term deposits totalling about $740,000 and an 80% interest in a unit in Sydney. Mr UMT owns the remaining 20%. Ms XDX receives income of $160 per month for rental of the garage for the home unit at Sydney's North Shore. It was also reported that the NSW Trustee and Guardian was giving consideration to the future of the unit and investigations were being undertaken into the withdrawals from Ms XDX's savings account.

Grounds for the set aside application and Mr UMT's submissions 17Mr UMT contended that the Tribunal should set aside the orders made on 29 July 2014 pursuant to s 53(4) of the Civil and Administrative Tribunal Act 2013 NSW (the CAT Act) because the Tribunal had failed to comply with subs 45(1) and (3) which make provision in relation to the representation of parties in proceedings before the Tribunal. Relevantly, s 45(1) provides that a person has the carriage of their own case and may be represented by another party only if the Tribunal grants leave. Subsection (3) provides that that the Tribunal may grant or refused leave at its discretion. According to Mr UMT's submissions, the Tribunal decision and the conduct of the hearing on 29 July 2007 was "influenced by the comments/representation" made by Mr JCN, who is a former partner of Ms DCN and a legally qualified person of seniority. This was to the disadvantage of Mr UMT and his brother, Mr NET, and the Tribunal failed to offer an opportunity for Mr UMT and Mr NET to be represented. The Tribunal also failed to protect Ms XDX's "human rights" and respect her decision in appointing Mr UMT and Mr NET as her attorneys. 18Secondly, Mr UMT contended that the decision of the Tribunal should be set aside pursuant to section 63 at the CAT Act because there were errors in the decision. He identified the errors in his letter to the Tribunal dated 29 August 2014 and in his written submissions referred to the failure of the Tribunal to protect Ms XDX's human rights.

What did the Tribunal have to decide? 19The CAT Act empowers the Tribunal to set aside and/or vary a decision in four circumstances. 20First, a party may lodge an internal appeal to the Appeal Panel of the Tribunal on a question of law or with leave under Part 6, Division 2. The Tribunal may make a number of orders in determining an internal appeal, including orders to set aside or vary the decision which is the subject of the appeal. Secondly, the Tribunal may set aside or vary a decision under reg 9 of the Civil and Administrative Tribunal Regulation 2013 (NSW) if all parties consent or if the decision was made in the absence of the party. Neither of these provisions applies. Mr UMT and Mr NET did not appeal the decision of the Tribunal and there is no contest that the pre-conditions to enliven the discretion under reg 9 have not been met. Accordingly, the decision of 29 July 2014 cannot be set aside or varied on either of these grounds. 21The third source of power to set aside or vary a decision is contained in s 53 of the CAT Act which provides: Amendments and irregularities (1) The Tribunal may, in any proceedings, make any amendments to any document (for example, an application or appeal) filed in connection with the proceedings that the Tribunal considers to be necessary in the interests of justice. (2) Any such amendment may be made: (a) at any stage of the proceedings, and (b) on such terms as the Tribunal thinks fit, but may only be made after giving notice to the party to whom the amendment relates. (3) If a provision of this Act or the procedural rules is not complied with in relation to the commencement or conduct of proceedings, the failure to comply is to be treated as an irregularity and does not nullify the proceedings or any decision in the proceedings unless the Tribunal determines otherwise. (4) The Tribunal may, however, in dealing with any such irregularity, wholly or partly set aside the proceedings or a decision in the proceedings. 22Section 63 of the CAT Act allows the Tribunal to "correct errors" in decisions but in the limited circumstances prescribed as follows: Power to correct errors in decision of Tribunal (1) If, after the making of a decision by the Tribunal, the President or the member who presided at the proceedings is satisfied that there is an obvious error in the text of a notice of the decision or a written statement of reasons for the decision, he or she may direct a registrar to alter the text of the notice or statement in accordance with the directions of the President or the member. (2) If the text of a notice or statement is so altered, the altered text is taken to be the notice of the Tribunal's decision or the statement of its reasons, as the case may be, and notice of the alteration is to be given to the parties in the proceedings in such manner as the President or member may direct. (3) Examples of obvious errors in the text of a notice of a decision or a statement of reasons for a decision are where: (a) there is an obvious clerical or typographical error in the text of the notice or statement, or (b) there is an error arising from an accidental slip or omission, or (c) there is a defect of form, or (d) there is an inconsistency between the stated decision and the stated reasons. 23The issue for determination by the Tribunal was whether the decision of the Tribunal on 29 July 2014 to commit Ms XDX's estate to financial management by the NSW Trustee and Guardian can or should be set aside or varied on the basis of s 53(4) and/or s 63 of the CAT Act.

Consideration 24Mr UMT, as supported by Mr NET, contended that the Tribunal did not comply with subs (1) and (3) of section 45 of the CAT Act by allowing Mr JCN to represent Ms DCN and by not giving them the opportunity to be legally represented. This failure was said to be an "irregularity" within the meaning of s 53(4) and the Tribunal is thereby empowered to set aside the decision. 25There are a number of difficulties with this contention. 26First, a review of the reasons for decision and the recording of the hearing reveal that Mr JCN did not represent Ms DCN at the hearing on 29 July 2014. Ms DCN represented herself and Mr JCN gave evidence to the Tribunal as a witness when called upon to do so. Accordingly, the factual assertion made by Mr UMT is not established. 27Secondly, while s 45(3) provides that the Tribunal may grant leave for representation, there must be an application for leave made by a person to enliven the obligation of the Tribunal to exercise its discretion. There was no such application nor did Mr UMT or Mr NET seek representation or an adjournment to obtain representation. This claim is therefore not made out. 28Thirdly, but more fundamentally, I do not accept that s 53 applies to the circumstances as contended by Mr UMT. Section 53 focuses on non-compliance with provisions and procedural rules that create any irregularity. There is no definition of "irregularity" in the CAT Act but the plain English meaning, as set out in the Oxford English Dictionary, connotes "not in conformity with [a] rule or principle." Section 53(3) refers to "the provisions of the Act and procedural rules." While on its face this section may encompass a wide range of provisions and rules, including those provisions directed to procedural fairness, to interpret the effect of s 53(4) so broadly would unnecessarily trespass on the rights of appeal established in Part 6 of the CAT Act. Section 53 is a beneficial but practical provision intended to give effect to documents and decisions affected by technical procedural defects and to give the Tribunal discretion to correct such defects. This is clear from the language, heading and context of s 53 when read as a whole. Furthermore, s 53 is directed to the conduct and actions of the parties, not the Tribunal. 29Even if I am wrong on this and my interpretation of the provision is unduly restrictive, s 53(4) gives the Tribunal discretion to set aside, wholly or partly, proceedings or a decision in the proceedings. Having regard to the remedies available to parties under Part 6 and regulation 9, in my view it would not be appropriate for the discretion under s 53(4) to be exercised in circumstances where these alternative remedies could be more properly utilised. To exercise the discretion such circumstances would defeat the provisions of Part 6 and regulation 9 and undermine the objects of the CAT Act. Parties are entitled to finality in the determination of their disputes. Where there has been a hearing conducted and a decision is made by Tribunal, the decision should stand unless challenged on appeal in accordance with the provisions of the CAT Act or under the terms of regulation 9. 30I therefore reject Mr UMT's application to set aside the decision of the Tribunal pursuant to s 53(4) of the CAT Act. 31I also reject Mr UMT's application pursuant to s 63 of the CAT Act. It is clear from the terms of the section that this section is directed to the obvious errors in the text of the decision, not errors of law or errors of fact. This is reinforced by s 63(3) which provides specific examples of when there will be an error. Those errors include typographical errors and an accidental slip or omission. 32It is clear from Mr UMT's letter of 29 August 2014 that the matters he particularises as errors for the purposes of s 63 are in fact matters he disputes about the Tribunal's findings of fact. He does not agree with the conclusions made by the Tribunal on the evidence nor does he agree with the way the Tribunal exercised its discretion to make a financial management order. This is not an error contemplated by s 63. It is also relevant to note that only the President or the member who made the decision can correct the error and there is no power to set aside or vary the decision but merely to "correct." Section 63 therefore has limited scope and effect. 33Mr UMT further contended that the decision "failed to protect his mother's human rights." This could not be described as an irregularity or an obvious error. Mr UMT explains this ground in his written submissions as follows: The application for a financial manager for my mother is unnecessary and has no ground, substance and no adequate supporting evidence, because: My mother granted her Power of Attorney to my brother and me on 22 October 2010. The Power of Attorney was duly executed in accordance with the Power of Attorney Act 2003 with the intention that it will continue to be effective even if she lacks capacity through loss of mental capacity after its execution. My brother and I, as Attorneys, have acted in the best interests of the Principal. The Power of Attorney has operated and been in effect in accordance with the Power of Attorney Act 2003. 34This ground seeks to challenge the factual findings of the Tribunal and the exercise of its discretion to make an order under s 25E of the Guardianship Act 1987 (NSW). It is clear from the reasons for decision that the Tribunal considered the existence of the Power of Attorney dated 22 October 2010 when making its decision. Mr UMT and Mr NET do not agree with that decision. As parties they had the right to appeal the decision, either on a question of law, or with leave, to Appeal Panel of the Tribunal. They did not do so. 35I therefore find that the application made by Mr UMT and Mr NET must fail and is therefore dismissed.

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 December 2014

Civil and Administrative Tribunal Regulation 2013(NSW)

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