YFG v YFH

NCAT Appeal Panel|2023-10-19|Before: Senior Member J

Background

YFH, the First Respondent, is a lady of Maltese heritage who is in her early 80s. She is a permanent resident at an aged care facility in Western Sydney, and has four children: the Appellant, and the Second, Third and Sixth Respondents.
The Tribunal has previously found that: 1. YFH has dementia, and as a result is unable either to manage her person or to manage her affairs; and 2. There is a history of significant disagreement and conflict between the siblings concerning YFH's care and welfare.
On 26 November 2020, the Tribunal made a financial management order for YFH, appointing the Appellant as her financial manager, subject to the authorities and directions of NSW Trustee and Guardian.
On 28 September 2021, the Tribunal made a guardianship order for YFH, appointing for 2 years: 1. The Public Guardian as her guardian, to make decisions about her accommodation; and 2. the Appellant and the Third Respondent jointly as YFH's guardians, to make decisions for her about health care and medical and dental treatment.
0n 9 May 2023, at the request of the Second and Sixth Respondents, the Tribunal: 1. Reviewed the guardianship order of 28 September 2021 and dismissed the application for review after hearing; and 2. Reviewed the financial management order of 26 November 2020, and: 1. removed the Appellant as financial manager, and 2. appointed NSW Trustee and Guardian as financial manager in her place.

The course of the appeal

On 23 May 2023, the Tribunal received a Notice of Appeal against the decision of 9 May 2023 concerning the financial management order. This was within the period prescribed by cl.25(4) of the Civil and Administrative Tribunal Rules 2014. Attached to the Notice of Appeal were: 1. a written submission, and 2. various documents that appear to have been provided to the Tribunal in connection with the decision under appeal.
On 24 May 2023, the Tribunal received an application from the Appellant seeking a stay of that decision.
On 1 June 2023, the Tribunal received from the Appellant a further 10-page written submission and voluminous documentary and photographic materials that, the Tribunal understands, were in evidence at the May 2023 hearing.
On 7 June 2023, the Tribunal: 1. dismissed the application for a stay, 2. gave leave for the Second and Sixth Respondents to be legally represented, 3. made certain directions as to the filing and service of evidence and submissions by the parties, and 4. listed the appeal for hearing on 19 October 2023.
The Tribunal has not received from any Respondent either a reply to the appeal or any submissions or evidence.
The Appellant sought leave to be represented at the appeal by her husband as her agent. The Appeal Panel gave leave.
No Respondent appeared or was represented at the appeal hearing. The Appeal Panel was satisfied from the Tribunal's records that: 1. they had been appropriately notified of the date, time and place of the appeal hearing, and 2. no Respondent had sought any adjournment of the appeal hearing. Accordingly, the Appeal Panel proceeded with the hearing in their absence.

Applicable general principles

Section 4 of the Guardianship Act 1987 provides as follows: 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.
Section 36 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) provides as follows: The "guiding principle" for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
These two sets of principles together inform the approach taken by the Appeal Panel.

Scope and nature of internal appeals

Internal appeals may be made as of right on a question of law, and otherwise with the permission of the Appeal Panel: s 80(2), NCAT Act.
In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.
In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel stated at [84] that 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.
In P v NSW Trustee and Guardian [2015] NSWSC 579, at [191] Lindsay J indicated that five qualifications should apply to the comments of the Appeal Panel in Collins v Urban in the particular context of an appeal from the Guardianship Division. Of those, only four are relevant in appeals to the Appeal Panel (rather than to the Court). Those four qualifications are: 1. There is a need to take section 4 of the Guardianship Act specifically into account, as recognised in BPY v BZQ [2015] NSWCATAP 33 at [33] to [34]; 2. In deciding how to proceed in dealing with any challenge to a decision of the Guardianship Division, it is important to be mindful of a need, characteristic of the protective jurisdiction but reinforced by statute, to administer a protected estate without strife, in the simplest and least expensive way; with informality of procedure; and in a manner calculated to facilitate the just, quick and cheap resolution of the real issues in dispute; 3. Given the broad evaluative or discretionary content of most decisions made on an exercise of protective jurisdiction, guidance about what is or may be an error of principle may, in particular cases, be derived from House v The King [1936] HCA 40; 55 CLR 499; and 4. In reviewing an evaluative or discretionary decision of the Guardianship Division, it is necessary to make due allowance for the possibility that the Division's discretionary powers, in the exercise of protective jurisdiction, are unconfined except by the subject matter, scope and purpose of the Tribunal's jurisdiction.
The Appeal Panel must give effect to the guiding principle referred to in paragraph [14] above when exercising functions under the NCAT Act. This is reinforced by s 38(4) of the NCAT Act, which requires that the Tribunal 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".
Because of the complexity and technicality of the concepts underlying the Tribunal's appellate regime, which are set out in paragraphs [16], [17], [18] and [19] above, self-represented appellants may sometimes struggle to identify and articulate their grounds of appeal with the precision that those concepts require. It is thus not inappropriate having regard to the guiding principle for the Appeal Panel " ... to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal": Cominos v Di Rico [2016] NSWCATAP 5 at [13]. In doing so in guardianship matters, the Appeal Panel may adopt a liberal approach, having regard to the protective nature of the Tribunal's guardianship jurisdiction: ZNX v ZNY [2020] NSWCATAP 41, at [29]. However, the Appeal Panel must act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68], citing Hamod v State of New South Wales [2011] NSWCA 375 at [309] to [316]) and avoid the temptation "... to itself draft its own Grounds of Appeal and then resolve those Grounds": SZTOG v Minister for Immigration and Border Protection [2018] FCA 112, at [30].
Section 38(2) of the NCAT Act provides statutory permission for this general approach, by authorising the Tribunal to "..... inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice".

Grounds of Appeal

Within that framework, we turn to consider the substance of the appeal.
The basis of the appeal as it emerges from the Notice of Appeal and the Appellant's submissions appears in summary to be as follows: 1. There were procedural deficiencies in the Tribunal's conduct of its hearing, namely: 1. The Appellant was allowed insufficient time to present her case; and 2. Her husband was not allowed to express his views. 1. There was no evidence, other than the Second and Sixth Respondents' uncorroborated assertions, to indicate any impropriety on the part of the Appellant as her mother's financial manager. The Tribunal was therefore incorrect to make the order under appeal.

The Tribunal's decision

At the outset, the Tribunal noted that there was no suggestion that the financial management order itself should be revoked, whether as section 25P of the Guardianship Act provides, because YFH had regained her capacity to manage her affairs or because the order's revocation was otherwise in her best interests. Rather, in the Tribunal's assessment, the only issues in the review were: 1. Whether under section 25U of the Guardianship Act the Appellant should be removed as YFH's financial manager; and 2. If so, who should be appointed as financial manager in her place.
The Tribunal made the following findings relevant to those questions: 1. The Applicant was compliant with NSW Trustee and Guardian's reporting and compliance requirements; 2. Some accounts owing by the First Respondent remained outstanding, for reasons that the Appellant did not clearly explain; 3. The Appellant had instructed a solicitor to prepare an agreement between the four siblings under which they were each to receive a share of the proceeds of sale of the First Respondent's house; she did not however proceed to enter into this agreement; 4. There are several significant financial or property decisions to be made concerning the First Respondent's estate, notably concerning the possible sale of her property and the funding arrangements for her aged care; 5. There was "animosity and aggression" as between the Appellant, on the one hand, and certain other parties - presumably, the Second and Sixth Respondents, who were the applicants in the two applications to review the financial management order - concerning her stewardship of the First Respondent's affairs; particular issues that generated controversy were the Appellant's alleged failure to provide information to her siblings about their mother's affairs, inconsistent advice about a proposed sale of the First Respondent's house, and her decision not to enter into the proposed agreement referred to above; 6. The Appellant was unable to provide information to, or to answer questions from, the Tribunal concerning her management of her mother's estate other than through or in reliance on her husband; 7. The Appellant's husband was acting as de facto financial manager for the First Respondent, and notably was the intermediary for all communication between the Appellant and NSW Trustee and Guardian concerning the First Respondent's estate; and 8. The Appellant had practically delegated her responsibilities as financial manager to her husband, whose appointment as financial manager had not been canvassed with the Tribunal and whose suitability to perform those duties had not been investigated by the Tribunal.
It concluded from these findings that: 1. It had reservations concerning the Appellant's ability to undertake the role of financial manager for her mother. 2. The First Respondent's best interests would be served by the appointment of an independent financial manager, to allow for a dispassionate and neutral approach to the management of the First Respondent's estate without being engaged in the family conflict. 3. The Sixth Respondent, who was a candidate for appointment, was not a suitable appointee since the Tribunal: 1. Was not satisfied that she had appropriate skills and experience; and 2. Did not consider her to be independent of the family conflict. 1. The appropriate appointee was NSW Trustee and Guardian, whose appointment was more likely to reduce the conflict and suspicions surrounding the First Respondent's estate.
It further concluded that the appointment of NSW Trustee and Guardian was consistent with the Tribunal's duty to observe the principles in section 4 of the Guardianship Act, notably: 1. Section 4(e), which refers to "the importance of preserving the family relationships" of the person who is subject to an order; and 2. Section 4(a), which requires that "the welfare and interests of such persons should be given paramount consideration".

Consideration - alleged procedural deficiencies

On 7 June 2023 the Tribunal made certain directions concerning the conduct of the appeal. These included relevantly in Order 4(d) that: "The Appellant is to lodge with the Appeal Registry and give to each Respondent by 05 July 2023: ............................. (d) if ...... what happened at the hearing at first instance is being relied on by the Appellant in the appeal, a typed transcript of the relevant parts of the hearing, together with the sound recording of the entire hearing".
No such transcript or recording has been provided. Accordingly, the best evidence that the Appeal Panel has as to the conduct of the hearing at first instance is the Reasons for Decision issued by the presiding member. These indicate that: 1. The Appellant was given the opportunity to provide evidence and to make submissions concerning her stewardship of her mother's affairs, both generally and in relation to specific issues raised by the Second and Sixth Respondents, and made some effort to take that opportunity; and 2. The Tribunal considered that since the Appellant rather than her husband, was the appointed financial manager, it was she rather than he who was responsible for the management of her mother's affairs, and accordingly looked to her rather than him to answer questions about her management.
There is nothing in any of this that indicates to the Appeal Panel that the Tribunal failed to afford procedural fairness to the Appellant in the conduct of the hearing at first instance.

Consideration - alleged substantive deficiencies

In reviewing the Reasons for Decision issued by the presiding member, several matters were clear to the Appeal Panel: 1. First, the Tribunal had regard to the appropriate tests concerning the review of the financial management order and the appointment of the financial manager: this is apparent from paragraphs [32] to [37] of the Reasons for Decision. Those paragraphs reveal no error on any question of law. 2. Secondly, in doing so the Tribunal had regard to the principles set out in section 4 of the Guardianship Act 1987, notably: 1. paragraph 4(e) of the Guardianship Act, concerning the preservation of family relationships; and 2. the paramount consideration in paragraph 4(a) of that Act, concerning the First Respondent's welfare and interests. Again, no error on any question of law emerges from that consideration. 1. Thirdly, in doing so it had regard to the evidence before it as to: 1. The history of family animosity and aggression concerning the management of the First Respondent's affairs; 2. The major financial decisions that remained to be made concerning them; 3. The abortive proposal to distribute some of the sale proceeds from the prospective sale of the First Respondent's house to family members, which according to the evidence of NSW Trustee and Guardian's representative would not be approved by that organisation; 4. The Appellant's apparent inability to explain without recourse to or the intervention of her husband significant aspects of her management of her mother's estate; and 5. Her apparent delegation of her management responsibilities to her husband as de facto manager. 1. Fourthly, the findings of material fact made by the Tribunal identified above have not been shown to lack an evidentiary foundation, or to be "wrong" (Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54), or other than reasonably open to the Tribunal. 2. Fifthly, there is nothing in the Reasons for Decision to suggest that the Tribunal had regard to any matters that were not relevant to the proper conduct of the reviews, or failed to have regard to any matters that were relevant in that regard. 3. Sixthly, having regard to the evidence summarised in the Reasons for Decision, the Tribunal's decision to appoint NSW Trustee and Guardian as the First Respondent's financial manager had an "evident and intelligible justification", and was not so unreasonable that no reasonable decision-maker would make it (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18).
The Appeal Panel is not satisfied, therefore, that there is any question of law raised by the appeal sufficient to set aside the decisions to remove the Appellant as financial manager, and to appoint NSW Trustee and Guardian as financial manager in her place.

Leave to appeal

For completeness, the Appeal Panel also notes that the present appeal is not one in respect of which it would grant leave to appeal on grounds other than a question of law.
The appeal does not meet any of the criteria for granting leave to appeal that are identified in Collins v Urban and set out at [18] above, as tempered by the propositions in P v NSW Trustee and Guardian. It self-evidently does not present any issue of principle or raise any question of public importance or any matters of administration or policy of general application. Having regard to the matters set out in the Reasons for Decision, it neither results in any injustice which is reasonably clear, nor relies for its conclusion on any relevant factual error. The fact-finding process disclosed by the Reasons for Decision is flawed by neither unorthodoxy nor intrinsic unfairness.

Orders

The Appeal Panel orders that the appeal be 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: 24 November 2023

Guardianship Act 1987(NSW)ss 4, 25P

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