YFX v NSW Trustee and Guardian

The reasons for the decision of the Tribunal

1. The Tribunal recorded that YFX was 77 years of age and living in community housing in Inner Sydney which was managed by a community housing entity. The Tribunal recorded [1] that YFX was "reported to have no family involvement in his life" and [2] to "have a diagnosis of schizophrenia". The Tribunal recorded [3] that, on 7 December 2022 the Public Guardian had been appointed for the Appellant for twelve months to make decisions about his accommodation, including the authority to authorise others to implement those decisions, and about his services. The Tribunal recorded [4] that the application for appointment of a financial manager had been made by a Social Worker at a Sydney suburban Older Persons Mental Health Service (OPMHS).
2. The Tribunal identified [7], correctly there is no doubt, that it needed to consider whether YFX was incapable of managing his affairs, whether there was a need for another person to manage YFX's affairs and whether it was in his best interests for a financial management order to be made and, if so, who should be appointed as the YFX's financial manager.
3. The Tribunal identified [8] the relevant "questions" with respect to whether YFX was incapable of managing his affairs. It is not suggested that the Tribunal misconceived the nature or substance of the inquiry which it was required to make. Under the heading "Medical evidence" the Tribunal referred [11] to reports date 2 November 2022 and 7 July 2023 from Associate Professor Wand, a Senior Staff Specialist with the OPMHS in Sydney. The Tribunal recorded Professor Wand as saying that YFX had "untreated schizophrenia and has had no treatment for this for at least 20 years", and that he had been referred to OPMHS as "multiple risks were identified including imminent eviction from his accommodation due to squalor, hoarding and safety concerns as well as sexually disinhibited behaviour". The Tribunal further recorded [12] that Professor Wand noted that YFX was "experiencing current symptoms including persecutory delusions and thought disorder".
4. Against the background of assistance detailed by the Tribunal it was found that various entities had endeavoured to assist YFX with housing issues, largely without success. The Tribunal recorded OPMHS as reporting that YFX's eviction was "imminent as a result of alleged damage he has caused to his unit and the unit is now regarded as being uninhabitable".
5. The Tribunal referred [13] to the evidence of Professor Wand that, despite being aware that he is to be evicted, YFX has "made no attempt to secure alternate accommodation". YFX was said to have been "shocked" that alternate residential facilities could cost 85% of his pension. The Tribunal recorded Professor Wand's evidence that if YFX "refuses to pay for the fees he will likely become homeless with attendant risks to his health and welfare".
6. The Tribunal recorded [14] that YFX was "reluctant to discuss his financial affairs with us on questioning. He said he does not want to live anywhere else other than where he is now. We asked him about what he would do if he is evicted from his accommodation. He told us he would stay at a hotel. We asked him if he knew how much this might cost and whether he would be able to afford this but he said he was confident he would be able to manage."
7. The Tribunal recorded [15] YFX's OPMHS' Social Worker as believing that YFX's only source of income was his pension. There is no suggestion that such belief was inaccurate. The Tribunal found that "although unclear" it did not appear that YFX had any significant assets, and that his main expenses "seem to be his groceries and hills". YFX was "adamant" that he did not have any debts. YFX's Social Worker suggested that decisions would need to be made about whether YFX could be supported to live in the community or whether he now required some form of residential aged care, they being decisions that would be made by the Public Guardian following a proposal put to that office. Whatever those arrangements might have been it was suggested to be "necessary for sustainable arrangements to be put in place for payment of (YFX's) accommodation wherever he lives".
8. Under the heading "Conclusions and findings", the Tribunal found [16] that YFX was no longer capable of managing his affairs. The Tribunal made that finding having placed "substantial weight" on the opinions expressed by Professor Wand, and by YFX's OPMHS Social Worker with respect to "the impact of (YFX's) mental illness on his day to day functioning". The Tribunal noted that the options of both health professionals were "well reasoned and compelling". The Tribunal referred to the inability of YFX to "articulate clear plans for how he would identify and pay for alternative accommodation if he is evicted".
9. The Tribunal was accordingly [17] satisfied that YFX was currently unable to manage his own financial affairs. In reliance upon those findings, the Tribunal found [18] that there was a need for someone to manage YFX's affairs "as the evidence available indicates that the current arrangements for management of his financial affairs are not working in his interests. He is a very vulnerable man by reason of his untreated mental illness. He is facing the prospect of eviction from his home with a hearing date scheduled in a few weeks' time in the Consumer and Commercial Division of NCAT" according to YFX's Social Worker. Those proceedings were brought by the landlord seeking termination of YFX's residential lease. The Tribunal found that the evidence indicated that the "prospect of homelessness for (YFX) is a very real and material risk".
10. The Tribunal recorded [19] YFX's "strong opposition to having a financial manager appointed" which it considered "weighs against an order being made". On balance however the Tribunal found that the evidence favoured making such an order to promote and protect YFX's welfare and interests, in reliance upon s 4(g) of the Guardianship Act 1987 (NSW) and protect him from exploitation, abuse and neglect: Guardianship Act, s 4(g). The Tribunal found that "stable management" of YFX's financial affairs was essential to ensure that he had ongoing appropriate accommodation which was "vital to his health and general wellbeing". The Tribunal found that, as there was no other suitable person to manage YFX's estate, it was appropriate to commit management of his estate to the NSWTAG.

Principles governing the appeal, application for leave to appeal and extension of time

1. The principles governing the matters requiring determination, or potentially requiring determination in these proceedings are not in doubt and require only brief reiteration. Consistent with the approach which courts and tribunals traditionally take (Gallo v Dawson (1990) 93 ALR 479 [1990] HCA 30) the Appeal Panel proposes considering whether time to appeal should be extended in the light of its conclusions with respect to the merits of the Appellant's challenges to the decision of the Guardianship Tribunal. If the Appellant's case is found to lack merit, an extension of time will be refused, there being no point in extending time to appeal or seek leave to appeal, only to then proceed to dismiss the appeal and application for leave to appeal. If the Appellant demonstrates merit, either on a question of law or otherwise, that would be likely to justify a grant of leave to appeal. That is particularly so as YFX was a litigant in person during the period when time to appeal was expiring, and is under a legal disadvantage. The order for separate representation of YFX was not made until well after the time for filing a Notice of Appeal had expired. Extending time would not seriously prejudice the Respondent. In those circumstances, the Appeal Panel would be likely to extend the time for filing the Notice of Appeal if likely meritorious appeal grounds were demonstrated, notwithstanding that YFX has not adequately explained the failure to file his appeal pleading within time.
2. During the course of oral submissions, the Separate Representative submitted that some of YFX's challenges were capable of constituting errors on a question of law pursuant to s 80(2)(b) of the CAT Act. In Micallef v ICI Operations Australia Pty Limited [2001] NSWCA 274 at [45] Heydon JA identified a number of grounds which may establish success on question of law: 1. an error of legal principle; 2. a material error of fact; 3. taking into account an irrelevant matter; 4. failing to take into account a relevant matter; 5. arriving at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning; 6. failing to adequately expose the process of reasoning which led to the decision and/or a constructive failure to exercise jurisdiction (Resource Pacific Pty Limited v Wilkinson [2013] NSWCA 33); 7. failing to respond to a substantial, clearly articulated argument relying upon established facts (Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 [2003] HCA 26); 8. denying a party natural justice or procedural fairness in circumstances where the same result would not be inevitable if the appeal were allowed and a new trial ordered (Stead v State Government Insurance Commission (1986) 161 CLR 141 [1986] HCA 54); 9. actual or apprehended bias (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 [2000] HCA 63).
3. The principles governing the application for leave to appeal were summarised by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17. In Collins the Appeal Panel accepted that, generally, in order to obtain a grant of leave to appeal an applicant needs to demonstrate something more than the primary decision maker having been "arguably wrong", or that there was a bona fide challenge to an issue of fact, that the grounds of appeal raise a question of principle or public importance or matters of administration or policy, or that the tribunal made an "error of fact which resulted in an injustice that is reasonably clear" or an approach to fact finding which was so unorthodox, or lacking in an evident and intelligible basis as to justify granting leave to appeal.
4. As is not in doubt, questions of principle, public importance or matters of administration or policy must arise within the context of the subject matter of the proceedings in which leave to appeal is sought. Because a party considers that complaints or grievances that he or she wishes to agitate involve some or all of those matters does not mean that they do. Realistically, any party disappointed by the outcome of litigation will consider that one or more of the criteria for leave to appeal applies to his or her case.

Appellant's contentions

1. The first submissions filed by YFX's Separate Representative dated 11 January 2024 set out matters of background. To the extent that those matters were the subject of findings of fact by the Tribunal, they have been established for the purpose of the appeal. They otherwise have not been established, given that YFX did not seek leave to adduce new or further evidence in the appeal. In any event, nothing there raised militates against acceptance of the findings of fact of the Tribunal with respect to the matters there discussed.
2. The submissions acknowledged that YFX had filed his appeal pleading out of time and thus needed an extension of time to appeal. In support of such extension YFX's Separate Representative submitted [13] that "Noting (YFX's) mental disability and the squalor and hoarding and risk of homelessness that he has been experiencing and there is no identifiable substantive prejudice to any party, it is submitted that leave should be granted to accept the appeal out of time." As suggested earlier, in the event that YFX demonstrates a basis upon which his appeal, or application for leave to appeal, could be successful, the Tribunal would be likely to extend time for filing his Notice of Appeal, and do so substantially in reliance upon the matters advanced by YFX's Separate Representative. If no merit is demonstrated, either on a question of law or any other ground, there would be no point in extending time to file a Notice of Appeal.
3. Having identified the "documents provided to me and information before me", YFX's Separate Representative submitted [15] that he had "not been provided with any transcript of the proceeding, or any exhibit list or other record of precisely what material was before the Tribunal for its consideration below". Two matters need to be recorded with respect to those observations. Consistent with the practice of the Appeal Panel, on 19 January 2024 it was ordered that the Appellant "and the Separate Representative to the extent he elects to do so" lodge with the Appeal Registry and provide to the Respondents by 16 February 2024 "if oral reasons were given and/or 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" (order 2(d)). YFX's Separate Representative acknowledged that he had been aware of that direction but had not filed transcript of the hearing or the sound recording. He also accepted, properly, that having not done so limited the potential for YFX's complaints to be successful.
4. The absence of transcript is also relevant to the second matter raised by YFX's Separate Representative. The Tribunal referred to the material which was before it and the witnesses who gave evidence. In the absence of the transcript, there is no reason to believe that there was other material before the Tribunal or that there needed to or should have been other material before the Tribunal could permissibly have made its decision.
5. Under the heading "Telephone call with (YFX) and 2 page document from (YFX)" YFX's Separate Representative referred to a telephone conversation he had with YFX on 11 January 2024. The submission recorded [16]-[19] a number of matters which YFX's Separate Representative said that YFX had told him during that conversation. There is no application to adduce new or further evidence in the appeal. Even if there had been, and the Appeal Panel received as evidence of the fact YFX's Separate Representative's statements in those paragraphs, they would not have advanced YFX's case.
6. It was submitted on behalf of YFX [20] that "In summary, it is my view that (YFX) has the capacity to manage his financial affairs and has been doing so adequately for his whole life". Even if his opinion had a basis of proven or assumed facts, which it lacks (Makita v Sprowles [2001] NSWCA 305), YFX's Separate Representative lacks the qualifications or experience to express that opinion (Dasreef Pty Ltd v Hawchar [2011] HCA 21). The Tribunal had before it the evidence of YFX's treating health professionals, whose qualifications and experience entitled them to give, and the Tribunal to accept, their opinions about matters pertaining to YFX's capacity. We have not been referred to anything which suggests that reliance upon that evidence was unsafe, or that the Tribunal should have sought further or additional evidence.
7. Under the headings "The role of a Separate Representative" and "Important principles in the protective jurisdiction", YFX's Separate Representative set out a number of statutory provisions and principles governing the present proceedings. That summary was accurate. As will be seen, it has not been established that the decision of the Tribunal, or how it came to that decision, offended any of those principles.
8. With respect to "the appeal" YFX's Separate Representative set out a number of principles emerging from the authorities, none of which is controversial. A number of those authorities we have earlier referred to. YFX's Separate Representative referred to the Judgment of White J (as White JA then was) in SAB v SEM [2013] NSWSC 253, and particularly to his Honour's observations at [7]-[10]. With respect to YFX's Separate Representative, nothing emerging from White J's Judgment is inconsistent with the principles which we have earlier recorded. It was conceded [39]-[40], properly, that YFX's Notice of Appeal did not identify "an error of law".
9. Under the heading "Can an error of law be identified from a review of the reasons for the decision?" YFX's Separate Representative set out in the basis upon which, having correctly identified its task, the Tribunal erred in undertaking the task and making the correct and preferable decision with respect to it. It was submitted [43] that: "It would appear, when reading 14 and 15, that the Tribunal had scant to no evidence of the financial affairs of (YFX) (and how he manages his affairs) and that it relied solely on: (a) some brief answers of (YFX) to questions put to him by it during the hearing; (b) opinion (and, with great respect, some speculation) by the applicant; (c) hearsay relied on by the applicant and in the Wand reports, in finding that (YFX) is 'no longer capable of managing his affairs'."
10. The absence of the transcript of the hearing renders the success of this complaint problematic. Although, as submitted on behalf of YFX, the Tribunal exercised a protective jurisdiction, it remained bound by the evidence before it. In the absence of the transcript it cannot be accepted that YFX only having given "brief answers", the Tribunal thereby having only "scant" evidence with respect to YFX's financial circumstances resulted from a failure to give proper, genuine and realistic consideration to the merits of the case (Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 713), or in some other way vitiated the Tribunal's determination of the proceedings.
11. To the extent that the Tribunal relied on "opinion", in the absence of the transcript, YFX has not demonstrated that the Tribunal erred in relying upon the opinions to which it referred in its reasons. Some of those opinions were clearly well within the training and expertise of the witnesses who gave them, whilst others were well able to be given by those witnesses in reliance upon their expert opinions, and their knowledge of matters based on commonsense and ordinary experience which did not require professional expertise. Clearly, as he was facing eviction, and with no apparent alternative accommodation, it was important that something be done to assist YFX to avoid becoming homeless, as the evidence suggested was a real, and concerning possibility.
12. The Tribunal was not bound by the rules of evidence. That did not mean that it could safely necessarily or unquestioningly accept hearsay evidence but, given the limited information which YFX chose to, or was able to provide to the Tribunal, and having regard to the nature of the hearsay, the Tribunal did not err in relying upon it to the extent that it did. It is important in that regard to note the extent to which the Tribunal did rely upon hearsay. Whilst it made a number of findings with respect to YFX's lack of capacity and possible consequences if a financial management order were not made, the Tribunal made no findings with respect to what was, or may have been available to YFX by way of alternate accommodation, or make any findings about the likely cost of such accommodation.
13. It was further submitted [44] that there was "no reference to any documentary evidence before the Tribunal from (YFX) (such as bank statements or utilities or other bill invoices). Such evidence would seem critical for a determination of whether or not (YFX) is capable of managing his affairs." We accept that, in some circumstances, the Tribunal would have an obligation to enquire of a person in YFX's position about such documents and, conceivably, defer the determination of proceedings to allow the opportunity to produce such documentation. Again, in the absence of the transcript, the Appeal Panel cannot find that the Tribunal erred in not seeking to facilitate production by YFX of documentation of the kind to which his Separate Representative referred. Implicit in the submission on behalf of YFX is that he in fact had such documents. Nothing to which the Appeal Panel has been referred establishes that he did, or was likely to. Whether, as submitted on behalf of YFX [45] his suggestion that he could stay in an hotel was "not implausible or unrealistic, noting Sydney has many cheap hotels and boarding houses occupied by pensioners", cannot advance YFX's case in the absence of evidence, or further or new evidence about the availability or cost of such accommodation. We have not been referred to anything which reveals that the Tribunal erred in finding as it did with respect to such evidence as YFX gave about his financial circumstances. Moreover, if the assertion made in the appeal on behalf of YFX had an evidentiary foundation, it was open to YFX to seek to adduce as new or further evidence such information. That did not happen.
14. Similar observations apply to the submissions on behalf of YFX at [46]. It was submitted [47] that the Tribunal had "appeared to conflate consideration of guardianship", inferentially with financial management and that, as such, "doubt" was "cast on the Tribunal's fact finding process" which "assists in creating the overall impression that that process was done in an unorthodox manner or in such a way that it was likely to produce an unfair result". We cannot accept that proposition. Again, in the absence of the transcript, there is nothing to indicate that the Tribunal erred in the manner asserted. Moreover, we discern nothing from the reasons of the Tribunal to suggest that it was in any doubt as to the separate roles performed by YFX's guardian and any financial manager who may be appointed. In reality, there is a practical connection, in so far as the guardian's ability to make particular arrangements for accommodation or provide other benefits for a protected person will often be significantly impacted by the financial capacity of the financial manager of the protected person to implement decisions of that kind made by the guardian. The Tribunal has not been shown to have conflated, blurred or misconceived the roles of guardian and financial manager.
15. The submission [48] that the evidence relied upon by the Tribunal in support of its findings was "similarly high level and sparse" cannot be accepted in the absence of the transcript which, if this complaint had merit, would be thereby borne out. The evidence to which the Tribunal referred provided an adequate factual for its decision. The decision itself has not been shown to lack an evident and intelligible foundation, on that, or any other basis.
16. It was submitted [49] that the Tribunal had erred for the reasons there submitted in finding, on "the Briginshaw standard", that YFX was in need of financial management, it being further submitted that the material before the Tribunal ought to have been "more compelling than it was". Yet again, in the absence of the transcript, or any other demonstrated basis for doing so, we cannot accept that the Tribunal erred in any of the ways asserted on behalf of YFX. The Tribunal had sufficient evidence to make the findings it did. The evidence did not need to be compelling in order to make those findings.
17. In his written submissions of 16 February 2024, other than updating his understanding of YFX's current circumstances, YFX's Separate Representative did not advance anything further in support of his appeal or application for leave to appeal.
18. During the course of oral submissions, and in reliance upon provisions of s 38 of the CAT Act, YFX's Separate Representative advanced a natural justice or procedural fairness argument. Section 38(2) of the CAT Act, to which YFX's Separate Representative referred, provides that the Tribunal is not bound by the rules of the evidence and may "enquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice". Predictably, greater reliance was placed upon the provisions of s 38(5) of the CAT Act which requires the Tribunal to "take such measures as are reasonably practicable" inter alia (a) "to ensure that the parties to the proceedings before it understand the nature of the proceedings" and (b) "if requested to do so - to explain to the parties any aspect of the procedure of the Tribunal or any decision or ruling made by the Tribunal, that relates to the proceedings" and (c) "to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings".
19. In the absence of the transcript the Appeal Panel cannot be satisfied that the Tribunal failed to "inform itself" on any relevant matter other than to the extent which its reasons reveal the Tribunal to have done so. Although, and particularly as he was subject to a guardianship order at the time, the Tribunal was on notice that YFX was under a disadvantage, in the absence of the transcript, we cannot accept that the Tribunal failed to ensure that YFX understood the nature of the proceedings which were before it, or was not afforded procedural fairness as a litigant in person. The fact that YFX only provided limited financial or other information to the Tribunal does not, without more, establish that the Tribunal failed to ensure that he understood the nature of the proceedings, or that it failed to explain to him any aspect of the procedure of the Tribunal, or any decision or ruling made by it during the hearing relating to the proceedings. Similarly, in the absence of the transcript, the Appeal Panel cannot be satisfied that YFX was not afforded natural justice and procedural fairness by the Tribunal.
20. Section 45(4)(c) of the CAT Act provides that the Tribunal "may" order that a party be separately represented. Doing so involves the exercise of discretion having regard to the facts of the case, and the circumstances of the party whose representation is under consideration. The exercise of discretion is informed by the general principles articulated in s 4 of the Guardianship Act. The Guardianship Act creates no presumption in favour of making an order for separate representation, nor does s 45(4)(c) of the CAT Act.
21. In ZBR v ZBS [2016] NSWCATAP 209, the Appeal Panel considered the role of a Separate Representative in protective jurisdictions and said at [43] that the use of a Separate Representative in such proceedings was "to assist the court or tribunal to reach a full understanding of the needs and wishes of the subject person", which was "an important role". The Appeal Panel further said at [44]-[46] that: "[44] In earlier times it was not uncommon for the judge in a protection matter to interview or take evidence directly from the subject person in a private way in chambers, and, if seen as conducive to that process, to do so without any legal representatives present. [45] The facility of a separate representative builds on that tradition. It has the benefit of allowing the judge to stay at arm's length in relation to the ascertainment of the subject person's needs or wishes. The separate representative will often be a lawyer but that is not essential. A separate representative may be preferred, who has special training in the ascertainment and assessment of a person's needs and wishes. In addition, the Guardianship Division has staff who prepare reports for use at hearing that will include any information obtained from the subject person in relation to their needs and wishes. [46] The objective is to undertake a form of review appropriate to a protective jurisdiction, within the confines of the relevant statute. What that process involves admits of a variety of approaches. The observations of Lindsay J about the nature of an appropriate review process in the forensic mental health patients jurisdiction can, we think, be applied, in general terms to decisions in relation to guardianship and financial management: (No 4) at 112 to 115 [1] . The decision whether or not to appoint a separate representative is one aspect of the process."
22. Relevantly for present purposes, the Appeal Panel recorded at [49] that: "[49] The separate representative is a facility to assist the Tribunal in reaching the best decision in the circumstances. And in a protective jurisdiction an argument could be made for a separate representative to be used in all cases. But the Tribunal needs, also, to ensure that it deals with cases in a timely way, and does not generate costs and administrative demands which are not justified by the case and the issues that it presents. The special representative is a facility, which, in our experience, is used sparingly by the Tribunal. [50] The ultimate goal of the proceedings is to make a decision in the best interests of the subject person. That includes, we acknowledge, a responsibility to ascertain to the extent possible his or her wishes, and then to give them adequate consideration. [51] Whether there is any unfairness arising from non-appointment of a separative representative depends, as we see it, on whether it can be demonstrated practically that the non-appointment gave rise to a "practical injustice" to the subject person. ("Practical injustice" being the expression used by Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lamb (2003) 214 CLR 1 at 14 [38])"
23. In the absence of the transcript of the hearing before the Tribunal in this case, we are unable to find a denial of natural justice or procedural fairness to YFX in the Tribunal not adjourning the proceedings, not making an order for separate representation or appointing a litigation guardian. As we have earlier recorded, there has been no application in the present proceedings for leave to adduce new or further evidence with respect to any matters relevant to the decision under challenge.
24. It was submitted that, in the circumstances in which the proceedings came before it, the Tribunal should have adjourned the hearing of the proceedings, and either appointed a litigation guardian or a separate representative for YFX. Not surprisingly in the circumstances, the Appeal Panel was not referred to any authority in support of that proposition. In the absence of the transcript the Appeal Panel cannot find that the Tribunal erred by failing to take any of those steps. It is not insignificant that, despite his thorough and appropriate endeavours, YFX's Separate Representative did not seek to adduce evidence of YFX's financial circumstances which may have filled the assertedly fatal gap in the evidence before the Tribunal.

Conclusion

1. No basis for appellate intervention having been established, either on a question of law or on any other ground, there is no utility in extending time for YFX to appeal. Leave to appeal will be refused and the Notice of Appeal dismissed.

Order 1. Extension of time to appeal refused. 2. Appeal dismissed. 3. Leave to appeal refused.

Endnote

1. A (by his Tutor Brett Collins) v Mental Health Review Tribunal (No 4) [2014] NSWSC 31. 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: 03 May 2024