YKJ v YKL

NCAT Appeal Panel|2024-08-08

4/00131285 Publication restriction: (1) Pursuant to section 65 of the Civil and Administrative Tribunal Act 2013, a person must not without the consent of the Tribunal, publish or broadcast the name of any person who appears as a witness in these proceedings, to whom these proceedings relate, or is mentioned or otherwise involved in the proceedings. 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 provision of these reasons (with persons identified) is not intended to be a publication or broadcasting of an official report of the proceedings.

(2) The parties are to be referred to by the pseudonyms set out in these Reasons for Decision. Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Guardianship Division Date of Decision: 22 March 2024 Before: B L Adamovich, Senior Member (Legal) Dr M J Wroth, Senior Member (Professional) J L Newman, General Member (Community) File Number(s): 2023/00314322

Background

YKJ (or the appellant) is in her mid-70's with four children. Three daughters are respondents to these proceedings. Without meaning any disrespect, they are to be referred to by the following pseudonyms: YKL (the first respondent), YKN (the third respondent) and YKO (the fifth respondent). The appellant also has two brothers who will be referred to as YKP (the fourth respondent) and YKM (the sixth respondent).
On 27 February 2019, the appellant executed an appointment of enduring guardian and an enduring power of attorney appointing YKP and YKN as her enduring guardians and attorneys. In 2023, YKL applied to the Tribunal to review the appointment of enduring guardian and enduring power of attorney executed on 27 February 2019. However, at the hearing before the Tribunal to review those appointments, it was discovered that on 26 October 2023, the appellant had executed an enduring power of attorney appointing YKM as her attorney. She also signed a revocation of the enduring power of attorney executed on 27 February 2019.
On 20 December 2023 (December 2023 decision), the Tribunal approved YKN's resignation as an enduring guardian and ordered the appointment of YKL as a substitute enduring guardian. The Tribunal also gave leave to YKL to amend her application, to encompass a review of the enduring power of attorney of 26 October 2023 and adjourned the hearing of that application.
The Tribunal recorded, at [71] of the December 2023 decision, that YKO wished to be considered for appointment as her mother's attorney/financial manager.
On 22 March 2024, a partially differently constituted Tribunal of the Guardianship Division, heard and determined the adjourned proceedings. The Tribunal made a financial management order and appointed the NSW Trustee and Guardian as financial manager of the appellant's estate (the Decision). This is an appeal from the Decision.

Statutory framework

The Tribunal may, on the application of an interested person, decide to review the operation and effect of a reviewable power of attorney or not to carry out such a review: s 36(1) of the Powers of Attorney Act 2003 (NSW). After reviewing the operation and effect of a reviewable power of attorney, the Tribunal may decide whether or not to make an order under this section: s 36(2) of the Powers of Attorney Act.
If the Tribunal decides not to make an order under s 36 of the Powers of Attorney Act, it may decide to treat the application for the review as an application for a financial management order under Pt 3A (Financial management) of the Guardianship Act 1987 (NSW): s 37(1) of the Powers of Attorney Act and s 25F(d) of the Guardianship Act.
Section 4 of the Guardianship Act sets out the general principles that must be observed when exercising functions under that Act and the Powers of Attorney Act with respect to persons who have disabilities. It provides 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.
Before the Tribunal makes a financial management order, it must consider the person's capability to manage his or her own affairs and be satisfied of the factors under s 25G of the Guardianship Act. Section 25G provides as follows: 25G Grounds for making financial management order 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.
Section 25M of the Guardianship Act sets out who the Tribunal may appoint as a financial manager in making a financial management order. It provides as follows: 25M Tribunal may commit estate of protected person to management (1) If the Tribunal makes a financial management order in respect of the estate (or part of the estate) of a person, the Tribunal may, by order - (a) appoint a suitable person as manager of that estate, or (b) commit the management of that estate to the NSW Trustee. …
The Tribunal may order that a financial management order be reviewed within a specified time: s 25N(1) of the Guardianship Act.

The decision of 22 March 2024

On 22 March 2024, the Tribunal proceeded to hear the application for a review of the enduring power of attorney executed by the appellant on 26 October 2023. That this hearing was a continuation of the hearing on 20 December 2023 was made clear at [10] of the Decision where the Tribunal stated: "[t]hese reasons for decision should be read in conjunction with the previous reasons for decision of the Tribunal with respect to [the appellant]". In the Decision, the Tribunal also referred to the hearing and the December 2023 decision at [9], [10], [17], [20], [23], [25], [26] and [34].
The Tribunal determined (at [20] of the Decision) to conduct a review of the enduring power of attorney of 26 October 2023. However, the Tribunal decided not to make any orders in relation to the review of the operation and effect of the enduring power of attorney; and instead, treated the request to review the enduring power of attorney as an application for a financial management order: at [37] of the Decision.
As the Tribunal noted at [38] of the Decision, before it could make a financial management order, it had to be satisfied that the appellant was incapable of managing her affairs, there was a need for another person to manage her affairs and that it was in her best interests for a financial management order to be made.

Whether the appellant was incapable of managing her affairs

The Tribunal noted that the appellant "has a diagnosis of mixed vascular/Alzheimer's dementia": at [46] of the Decision. The Tribunal accepted a report by Mr Zachary Stevens, clinical neuropsychologist, dated 9 October 2023 in which he wrote that the appellant "has limited insight into the facts around decisions that have to be made around her lifestyle and accommodation" and that "[s]he is completely unaware of her self-neglect and need for assistance and monitoring to ensure that she completes basic functional tasks, such as eating and medication management": at [46] of the Decision. The Tribunal noted that none of the participants in the hearing could provide any information as to the appellant's financial circumstances and that she had been the subject of financial exploitation: at [47] of the Decision. The Tribunal also noted that it was only the appellant and her then attorney YKM who considered she was capable of managing her affairs.
The Tribunal determined that the appellant was incapable of managing her own affairs due to her cognitive impairment associated with dementia: at [49] of the Decision.

Whether there is a need for a financial management order and whether it is in the interests of the appellant to appoint a financial manager

Despite being reluctant to interfere with the appellant's appointment of an enduring power of attorney (at [50]), the Tribunal nonetheless considered there to be a need for a financial management order and a financial manager to be appointed. The Tribunal referred to the appellant's history of being financially exploited and the "absolute lack of clarity" around her financial circumstances: at [51] of the Decision.
The Tribunal determined that there was a need to appoint someone to manage her affairs and that it was in her best interests for a financial manager to be appointed: at [52] of the Decision.

Who should be appointed

Having determined to make a financial management order, the Tribunal then considered who should be appointed as financial manager of the estate: at [53]-[63] of the Decision. The Tribunal noted the separate representative for the appellant was ultimately of the view that the NSW Trustee and Guardian should be appointed.
The Tribunal said at [62]-[63] of the Decision: "[62] We were not satisfied that [YKM] appreciates [YKJ]'s degree of cognitive impairment and its impact upon [YKJ]'s ability to manage her affairs. [YKM] is strongly of the view that [YKJ] is capable of managing her financial affairs and is managing well at home despite evidence to the contrary. [YKM] confirmed that he will not communicate with [YKL] who is one of [YKJ]'s enduring guardians. [63] We considered that at this point in time, there is no private person who is suitable to be appointed as a private financial manager."
We pause to note that the Tribunal did not refer to the fact that at the earlier hearing, the fifth respondent had indicated her willingness to act as her mother's "attorney/financial manager" (as referred to at [71] of the December 2023 decision).
The Tribunal committed the management of the estate to the NSW Trustee and Guardian and ordered that it be reviewed by the Tribunal within 12 months' time: at [64] of the Decision.

Grounds of appeal

On 9 April 2024, a Notice of Appeal was filed. Although the Notice of Appeal relates to the Tribunal's decision of 22 March 2024, as discussed above, the hearing on 22 March 2024 was a continuation of the hearing on 20 December 2023 and the Reasons for Decision for both hearings should be read together.
The ground of appeal is stated as follows (the appellant's ground): "I [YKJ], [I]'m capable to make my own decision on my own affairs in regards to my financial [management] and estate and want to appeal the decision that was made on the 22/03/2024 for [financial] management from Public Trustee."
In her Notice of Appeal, the appellant seeks an order "[t]o dismiss all decision and orders made on the 22/03/2024."
Other than by the appellant, it was not contended that the appellant was capable of managing her own affairs. The dispute as between the respondents was as to who should manage the appellant's affairs; whether it should be the NSW Trustee and Guardian or a family member.
At the appeal hearing, YKO contended that she could manage the affairs of her mother. Further, she maintains that she was not asked about this at the hearing in March 2024.

General principles

Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) provides, in effect, that an appeal against a final decision of the Tribunal at first instance may be made as of right on any question of law. YKJ has not sought leave to appeal.
In Imbree v Chief Commissioner of State Revenue [2024] NSWCATAP 158 (Imbree), the Appeal Panel stated the relevant principles regarding questions of law at [24]-[26]: "The principles regarding an appeal [24] An appeal may be brought, under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW), on a question of law, or with leave of the Appeal Panel, on any other grounds. The question of law must be a pure question of law and must be articulated with precision, as it is the subject matter of the appeal: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22]. It should be possible to discern the question of law from the notice of appeal: Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 at [71]. These authorities were recently applied by the Appeal Panel in Gennacker Pty Ltd t/as Homestead Holiday Park v Hohnberg [2024] NSWCATAP 96 at [11]. The Court of Appeal of NSW in Medical Council of New South Wales v Mooney [2024] NSWCA 180 at [96]-[97] recently reiterated the importance of identifying the question of law. [25] The Criminal Court of Appeal in Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220 at [48] and [109], identified that the pure question of law must be discernible on the face of the ground and not depend upon disputed facts: '[48] As was noted in Bass v Permanent Trustee Company Ltd (1999) 198 CLR 334; [1999] HCA 9 at [52], some questions of law can be decided without any reference to the facts, or may proceed by reference to assumed facts. These are sometimes described as "pure questions of law". This was the terminology used, for example, by Leeming and White JJA in strictly confining a grant of leave to appeal in Wilson v Chan & Naylor Parramatta Pty Ltd as trustee for Chan & Naylor Parramatta Trust [2020] NSWCA 62 at [11]; see also Medical Council of New South Wales v Lee [2017] NSWCA 282 at [77]; and Violi v Commonwealth Bank of Australia [2015] NSWCA 152 at [66] and [125]. … [109] Those questions of law should be, in our opinion, what are sometimes described as "pure questions of law". They should not draw the Court of Criminal Appeal into questions of fact. Moreover, they must be questions whose character as a question of law can be recognised on the face of the question, and not depend upon the answer given to the question.' [26] The relevant principles were recently stated by Chen J in Liu v Director of Public Prosecutions (NSW) [2024] NSWSC 382 at [87]-[90]. Of particular relevance to this case is what his Honour said at [89]-[90]: '[89] As to this last matter, what amounts to a question of law alone is as stated by Gibbs CJ in Williams v R (1986) 161 CLR 278, 287: … there is "a question of law alone" if the question of law can be stated and considered separately from the facts with which it may be connected in a given case. [90] The question of law alone is not, however, an abstract or hypothetical question. Rather, the appeal is against the conviction "on a ground that involves a question of law alone". That requires that the answer to the question of law, and the consequential questions that follow from its resolution, be material to the outcome "in the sense that it could have affected the outcome": Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 at [41]; Styles v Rowley [2023] NSWSC 1053 at [50]-[51]; R v GAT [2024] NSWCCA 32 at [90]. In that way, the appeal against the conviction 'involves' the question of law alone.'"
The Appeal Panel in Imbree discussed the relevant principles in relation to leave to appeal at [83]-[86]: "Leave to Appeal [83] Several cases in the Tribunal have considered when the Appeal Panel might grant leave to extend to the merits. Some of these were collected in FVA v Commissioner of Police, NSW Police Force [2024] NSWCATAP 127 and included: Ros v Commissioner of Police [2020] NSWCATAP 70 at [20]-[23], Collins v Urban [2014] NSWCATAP 17 at [82]-[84], Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]. See too Abdul-Karim v Council of the New South Wales Bar Association [2005] NSWCA 93 at [33]-[34]. [84] In order to obtain leave, the appellant must identify some point of principle or question of public importance, or an unorthodox approach to the fact finding, a finding that was unreasonably arrived at, or a clear injustice. [85] Here, the Appeal Panel accepts that there is a question of public importance in that the ground raises a question about the meaning and scope of the expression 'real purchaser' in s 55 of the Duties Act. [86] However, there must also be utility to the grant leave to appeal. This is supported by Kassam v Hazzard; Henry v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299 per Bell P (as his Honour then was) at [27]-[28] and the authorities cited there; NSW Land and Housing Corporation v Simeon [2021] NSWSC 325 at [7] per Basten JA."

The position here

Noting that the appellant was not legally represented, we have considered whether any questions of law arise.
The appellant, who appeared by telephone, was resolute when she spoke to the Appeal Panel, that she could take care of her own affairs and that she wished to do so. Nevertheless, we do not discern a question of law arising in relation to whether she is indeed capable of managing her affairs.
The next question is whether, on the principles above, we would grant leave to appeal the order of the Tribunal to subject the estate of the appellant to management under the NSW Trustee and Guardian Act.
We accept that the appellant wishes to manage her own affairs. On the other hand, not one of the respondents submitted that this aspect of the Tribunal's decision was in error. Further, the advocate appearing for the first respondent submitted that the real question was who should manage the appellant's affairs; in particular, whether it could be managed within the family or whether this should be done by an independent person.
The Appeal Panel notes that there was no basis suggested to challenge the findings of the Tribunal at first instance that the appellant was indeed a person with a cognitive impairment who had been financially exploited under the previous arrangements. Considering the foregoing, the Appeal Panel declines to grant leave to appeal on this ground.
The appellant's ground is dismissed.
The real question is who should manage the appellant's affairs: the NSW Trustee and Guardian or a family member; in particular, should it be the fifth respondent?
As a result of the submissions from YKO, the fifth respondent, we consider the following questions of law arise: 1. Whether the Tribunal misconstrued the statute or asked itself the wrong question, by failing to first be satisfied that there was no private person suitable, or that YKO was not suitable, to be the financial manager, before committing management of the appellant's estate to the NSW Trustee and Guardian. This raises a question of statutory construction, which raises question of law: Craig v State of South Australia (1995) 184 CLR 163 at pp 177-179; [1995] HCA 58 at [12], [14]; Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [71]-[74]. 2. Whether there was a denial of procedural fairness in that an opportunity was denied to YKO to be heard or whether critical evidence or submissions of YKO were ignored, in relation to her being a suitable person to manage the estate of the appellant. A material breach of procedural fairness may raise a question of law: Kudrynski v Orange City Council [2024] NSWCA 33 at [52]; YHY v YHZ [2024] NSWCATAP 117 at [24]; Boreland v Brewis [2024] NSWCATAP 140 at [61]. A material breach will be found if there was a realistic possibility that the decision in fact made could have been different: Nathanson v Minister for Home Affairs [2022] HCA 26 at [1]; MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 50; [2021] HCA 17 at [2]; Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at pp 134-35; [2018] HCA 34 at [29]-[31].
These questions are considered as the first and second grounds of appeal.
Having regard to the careful and considered way in which the Tribunal approached their task at first instance and the relevant principles identified above, we do not consider this is an appropriate vehicle to grant leave to extend the appeal beyond the questions of law raised. No basis has been suggested. Leave to appeal on other grounds is refused.

Misconstruction of the statute

The first ground we have identified raises the question of whether it was a statutory requirement, before committing management of the appellant's estate to the NSW Trustee and Guardian, to exhaust the possibility that there was a private person who was suitable for the role.
In the context of s 25M of the Guardianship Act, it has been found that it is not necessary to exhaust the possibility there is a suitable private person before committing the estate to the NSW Trustee. The Appeal Panel in YJC v Public Guardian [2024] NSWCATAP 160 recently considered whether appointment of the NSW Trustee and Guardian should be as a "last resort" and only after establishing that there was no suitable private person to take on the role. The Appeal Panel, after careful review of the cases, rejected that submission. We respectfully agree.
The Appeal Panel in ZGM v ZGN [2018] NSWCATAP 101 also stated at [44]-[45] that although s 25M of the Guardianship Act does not require the Tribunal to first be satisfied that there is no suitable person to be appointed as financial manager before it commits the estate to the management of the NSW Trustee and Guardian, the terms of s 25M, read together with the obligation to give paramount consideration to the welfare and interests of the subject person, in s 4 of the Guardianship Act, implicitly requires the Tribunal to consider nominations of a person proposed to act as manager: at [45]. This was also said in ZXH v ZXI [2022] NSWCATAP 269 at [60]-[61].
As the extract above identified (at Decision, [62]-[63]) the Tribunal indeed considered some options as to who a suitable person might be. Therefore, it cannot be said that the Tribunal did not consider options, before determining to commit the estate to the NSW Trustee and Guardian. Whether the fifth respondent was nominated and ought to have been considered as an option before the Tribunal is the subject of the second ground.
As it was not necessary to exhaust all possible alternatives before committing the estate to NSW Trustee and Guardian, no error on a question of law is established.
The first ground of appeal is dismissed.

Procedural fairness

The fifth respondent submits that she was not given an opportunity to apply to be her mother's financial manager and that at the hearing on 22 March 2024, she was not asked whether she would be prepared to take on the role. In essence, she submits that the Tribunal ought to have considered her and determined she was a suitable person.
We note that the fifth respondent had indeed nominated herself as a candidate to take on the role of financial manager of her mother. As mentioned, this is recorded at [71] of the December 2023 decision. Nevertheless, despite considering (and dismissing) her as a candidate for being an enduring guardian (December 2023 decision, at [59]) the Tribunal did not consider her candidature as an attorney or financial manager.
At a directions hearing on 15 May 2024, the Appeal Panel made orders for the filing and exchange of evidence including order 3(d) which is as follows: (d) If oral reasons were given and/or what happened at the hearing at first instance is being relied on by the Respondent in the appeal, a typed transcript of the relevant parts of the hearing (except to the extent already provided by the Appellant), together with the sound recording of the entire hearing (unless already provided by the Appellant)
A copy of the orders was emailed to the parties on 15 May 2024. On 15 May 2024 was amended to correct the telephone number for the NSW Trustee in order 8 and the amended order was emailed to the parties on 17 May 2024. However, none of the parties filed a sound recording of the hearing or a transcript.
There is no suggestion that the fifth respondent did not have ample notice of the proceedings at first instance.
The Tribunal, in its December 2023 decision determined each of the interested parties including the first respondent should be served with all material filed "to ensure a balanced and properly informed hearing might occur when the application is heard". In the Decision, the Tribunal at [11] referred to a list of the witnesses who attended the hearing. At the end of the Decision under the heading "Parties and Witnesses", the Tribunal stated at [2]: "[2] The following people participated in the hearing by telephone and videoconference: … • [YKO], joined party and child …"
The Appeal Panel is satisfied that the fifth respondent had ample opportunity to be heard on the issue of whether she should be her mother's financial manager. We are not satisfied that critical submissions were missed by the Tribunal. No material was filed before the Appeal Panel, to support the fifth respondent's nomination as financial manager. The Appeal Panel is not aware of any basis that was before the Tribunal at first instance that goes to this issue, other than what can be gleaned from the Reasons for Decision of December 2023 and March 2024. In the December 2023 decision, it was said that the first respondent had professional skills to take on the role of enduring guardian (not, we pause to note, financial manager) and a genuine concern for her mother (at [59]).
The highest this ground can be put is that the fifth respondent indicated her willingness to be her mother's financial manager in December 2023 and that she did so out of a genuine concern for her mother.
The Appeal Panel simply has insufficient information to be satisfied that there was a material breach of procedural fairness. There is insufficient material to cross the threshold of materiality. There is no basis to decide whether the fifth respondent's candidature could have been sufficient to alter the result. We note that the Tribunal mentioned family tensions (December 2023 decision at [57]) and this was reflected in the hearing before the Appeal Panel. In the absence of comprehensive submissions and materials, we are not in a position to disturb the result at first instance.
The second ground of appeal is dismissed.

Orders

The Appeal Panel orders: 1. Pursuant to section 65 of the Civil and Administrative Tribunal Act 2013, a person must not without the consent of the Tribunal, publish or broadcast the name of any person who appears as a witness in these proceedings, to whom these proceedings relate, or is mentioned or otherwise involved in the proceedings. 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 provision of these reasons (with persons identified) is not intended to be a publication or broadcasting of an official report of the proceedings. 2. The parties are to be referred to by the pseudonyms set out in these Reasons for Decision. 3. Leave to appeal is refused. 4. The appeal is 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: 01 October 2024

(2021) 106 NSWLR 520

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