ZAN v The Public Guardian

NCAT Appeal Panel|2015-12-04|Before: Wright J

No appearance by Second and Third Respondents File Number(s): AP 15/57371 Publication restriction: The publication of the name of any of the parties or other people referred to this decision including the publication of any information, picture, or other material that identifies them or is likely to lead to their identification is prohibited: s 65 of the Civil and Administrative Tribunal Act 2013 (NSW). Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Guardianship Division Citation: 2015/7012 and 2015/7013 Date of Decision: 12 August 2015 Before: J Anderson, Senior Member (Legal)Dr I Beale, Senior Member (Professional)Dr M Spencer, General Member (Community) File Number(s): C/60152

Introduction

ZAN, the father of ZAL, has appealed from a decision of the Guardianship Division of the NSW Civil and Administrative Tribunal ("the Tribunal") made on 12 August 2015 which appointed the Public Guardian of NSW ("the Public Guardian") as ZAL's guardian, and the NSW Trustee and Guardian ("the NSW Trustee"), as ZAL's financial manager. Those orders were as follows:

Financial management order: The Tribunal orders that: 1. The estate of [ZAL] is subject to management under the NSW Trustee and Guardian Act 2009. 2. The management of the estate of [ZAL] is committed to the NSW Trustee and Guardian. 3. This order be reviewed by the Tribunal within 6 months.

ZAL is currently 22 years old. ZAL was diagnosed as having mild cerebral palsy at a young age and has been assessed over many years to have significant cognitive delay amounting to an intellectual disability. ZAL has received case management services as required since 1998 provided by Ageing Disability and Home Care ("ADHC").
ZAL's parents divorced some years ago. Until May 2013, ZAL resided with his mother and his brother. ZAL's brother is also reported to have a moderate intellectual disability. Since his parents' divorce, ZAL had regular contact visits with ZAN. ZAL's mother died in May 2013. Following their mother's death, both ZAL and his brother commenced residing with their maternal grandmother. In 2014 ZAL, with support, commenced living in a NSW Housing unit in a suburb of Sydney and attended a transition to work program conducted by a disability employment service five days a week.
In early 2015 ZAL travelled on a cruise with ZAN. Shortly thereafter, ZAN commenced residing with ZAL in his unit. It is understood that this was against the wishes of members of ZAL's maternal family, including his grandmother. After ZAL and ZAN commenced residing together, there was diminished contact between ZAL and members of his maternal family.
In June 2015, ZAL ceased attending the transition to work program and moved together with ZAN to reside together in Regional NSW.
ZAM, a senior case manager with ADHC, lodged an application with the Guardianship Division of the Tribunal on 30 July 2015. ZAM sought the appointment of a guardian for ZAL alleging that ZAL, since residing with ZAN, was "making very bad choices about his life", was at a high-level of risk of sexual abuse from his father, no longer attended daily activities, and had lost contact with his extended family and friends. She also sought the appointment of a financial manager alleging that ZAL was at risk of losing his NSW Housing unit and that "there is a high risk that ZAN is using ZAL's money to make bad decisions in his life and to help supplement his own income." ZAM requested that the applications be heard on an urgent basis.
Following the issue of notices on 10 August 2015, the Tribunal proceeded to hear the applications on 12 August 2015 and made the orders the subject of this appeal on that same day. ZAN and ZAL participated in the hearing by telephone. The Tribunal posted the orders to the parties on 13 August 2015. The Tribunal then delivered written reasons for the decision which were posted to the parties on 19 August 2015.

Lodgement of Appeal and interlocutory matters

A Notice of Appeal was lodged with the Tribunal on 15 September 2015 appealing the orders of the Guardianship Division to the Internal Appeal Panel of the Tribunal. The Notice of Appeal identified ZAL as the appellant. An application requesting a stay of the orders pending the outcome of the appeal was lodged on the same day.
The Appeal Panel has jurisdiction to hear this appeal as it is an internally appealable decision: Civil and Administrative Tribunal Act 2013 (NSW), ("NCAT Act") ss 29, 32, and 80.
Under r 25 of the Civil and Administrative Tribunal Rules 2014 (NSW) ("NCAT Rules"), unless an extension of time is granted, an internal appeal must be lodged "within 28 days from the day on which the appellant was notified of the decision...or given reasons for the decision (whichever is the later)." The Tribunal made its decision on 12 August 2015 and the written reasons for the decision were posted on 19 August 2015. The Notice of Appeal was lodged with the Tribunal on 15 September 2015. It was evident that the appeal had been lodged within the time period limited by r 25.
The Appeal Panel conducted an interlocutory hearing on 25 September 2015 and made the following orders and directions: 1. The application made by [ZAL] for an order staying the operation of the decision made by the Guardianship Division of NCAT on 12 August 2015 is refused. 2. The Appeal is listed for hearing on Friday, 4 December 2015 at 10:15 am. 3. A separate representative is appointed for [ZAL] under s45(4) of the Civil and Administrative Tribunal Act 2013 (NSW) for the purpose of the Appeal. 4. By 6 November 2015, [ZAL] must give to the Tribunal and all other parties, an outline of submissions and any material on which he seeks to rely in the Appeal. 5. By 16 November 2015, each respondent must give to the Tribunal and all other parties, an outline of submissions and any material on which they seek to rely in the Appeal. 6. [ZAN] is joined as a party to these proceedings under s44 of the Civil and Administrative Tribunal Act 2013.
ZAN, ZAL and ZAM all appeared before the Appeal Panel at the hearing conducted on 4 December 2015, with ZAM participating by telephone. Ms Betty Weule also appeared as ZAL's guardian ad litem. It is not clear to the Appeal Panel why a guardian ad litem rather than a separate representative, as ordered on 25 September 2015, was apparently appointed. Nonetheless, in the interests of not delaying the appeal further, the Panel was content to proceed with the assistance of the guardian ad litem. None of the parties raised this as an issue.
Upon commencing the hearing, the Appeal Panel sought clarification as to the identity of the appellant. Whilst the notice of appeal stated that ZAL was the appellant, the manner in which it was expressed and its contents suggested that it was in fact, ZAN's appeal not ZAL's and that the notice had been completed and lodged by ZAN. ZAN agreed that he had completed and lodged the notice of appeal and it was he who was seeking to have the orders set aside. The Appeal Panel raised with the parties whether it should proceed to order that the name of the appellant be amended from ZAL to ZAN. There was no objection to that course of action.
Before proceeding to make the order amending the identity of the appellant, the Appeal Panel needed to be satisfied that ZAN was a party to the proceedings the subject of the appeal. This is because only a party to an internally appealable decision may appeal to the Appeal Panel: s 80(1) NCAT Act.
In her application form lodged with the Tribunal on 30 July 2015, in response to the question "does the person (ZAL) have a carer?", ZAM replied "yes" and identified ZAN as ZAL's carer.
The Tribunal provided a notice for the hearing of 12 August 2015 to ZAN but did not identify him as a party to the applications in the notice. It is unclear to the Appeal Panel why ZAN was not identified as a party in the notice along with other identified parties given that he had been described as a carer by ZAM in the application.
In an annexure to the Reasons for Decision, the Tribunal provided a list of the parties to both the guardianship and financial management applications. ZAN was not identified as a party to either application in that annexure. The Tribunal's Reasons for Decision do not indicate that the Tribunal turned its mind to whether ZAN was a party to one or both of the applications. In these circumstances, the fact that the Tribunal did not identify ZAN as party in the annexure to the Reasons for Decision does not of itself mean that ZAN was not a party.
The following provisions of the Guardianship Act 1987 (NSW) ("Guardianship Act") are relevant to identifying whether ZAN was a party to the original proceedings: 3F Persons who are "parties" to proceedings under this Act (1) A person is a party to proceedings before the Tribunal under this Act as provided by this section. (2) Each of the following persons is a party to any proceedings before the Tribunal in respect of an application for a guardianship order under this Act: (a) the applicant, (b) the person to whom the application relates, (c) the spouse, if any, of the person to whom the application relates, if the relationship between the person and the spouse is close and continuing, (d) the person, if any, who has care of the person to whom the application relates, (d1) the enduring guardian, if any, of the person to whom the application relates, (e) the Public Guardian, (f) any person whom the Tribunal has joined as a party under section 44 of the Civil and Administrative Tribunal Act 2013. … (5) Each of the following persons is a party to any proceedings before the Tribunal in respect of an application for a financial management order under this Act: (a) the applicant, (b) the person to whom the application relates, (c) the spouse, if any, of the person to whom the application relates, if the relationship between the person and the spouse is close and continuing, (d) the person, if any, who has care of the person to whom the application relates, (e) the person, if any, appointed attorney by the person to whom the application relates under a power of attorney that is in force, (f) the NSW Trustee, (g) any person whom the Tribunal has joined as a party under section 44 of the Civil and Administrative Tribunal Act 2013. … 3D Circumstances in which a person "has the care of another person" (1) For the purposes of this Act, the circumstances in which a person is to be regarded as having the care of another person include (but are not limited to) the case where the person, otherwise than for remuneration (whether from the other person or any other source), on a regular basis: (a) provides domestic services and support to the other person, or (b) arranges for the other person to be provided with such services and support.
The evidence before the Tribunal was that ZAN and ZAL had been residing together for some months and that prior to this co-habitation, ZAL had been residing in a unit in a suburb of Sydney and received regular support services to assist him to live as independently as possible in that unit. Without evidence to the contrary, it can be reasonably inferred that once ZAN commenced residing with ZAL, he proceeded to provide ZAL with some level of domestic services and support, or arranged for him to receive such domestic services and support.
Further, it appears that the question of whether or not ZAN was, or should have been, noted as a party to the original proceedings was raised at the interlocutory hearing on 25 September 2015 when order 6 was made joining ZAN as a party to the proceedings under s 44 of the NCAT Act.
No party objected to ZAN being recorded as the appellant to the proceedings.
In all the circumstances, the Appeal Panel was satisfied that it could conclude that ZAN was, or should be treated as having been, a party to the original proceedings pursuant to ss 3F(2), 3F(5), and 3D(1) of the Guardianship Act, and accordingly should be accepted as having standing to bring this Appeal.

Grounds of Appeal

In the notice of appeal, lodged with the Tribunal on 15 September 2015, ZAN stated the following in respect of the orders challenged and the grounds of appeal upon which he relied: 11A. Orders challenged on appeal: Financial Management Orders Guardianship Orders 11B. Grounds of appeal: Only given one day's notice about hearing we supposed to be given 7 days' notice and we were not able to attend and we had no legal representative at all. The orders that have been made are based on a pack of lies...
ZAN was not represented in the proceedings. In George Papazachariou v Michael Antoun [2015] NSWCATAP 157 an Appeal Panel of the Tribunal explained the role of the Panel in relation to self-represented Appellants: The Appeal Panel is mindful that it may be difficult for self-represented appellants to clearly express their grounds of appeal or, even more challenging, identify a question of law. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided and the reasons 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: Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69.
Accordingly, the Appeal Panel endeavoured to appropriately assist the appellant by seeking clarification as to the grounds of his appeal by enquiring of him as to what he believed was wrong about the circumstances in which the hearing that occurred on 12 August 2015, and why he believed the Tribunal's orders should be set aside.
After considering ZAN's notice of appeal and subsequent written and oral submissions, the Appeal Panel formed the view that the appeal grounds could be characterised as a failure to afford procedural fairness to ZAN by not: 1. providing ZAN with adequate notice of the hearing; and 2. taking steps to ensure that ZAN, as an unrepresented party, understood the nature of the proceedings by suggesting that he seek an adjournment of the proceedings.
ZAN has the right to appeal on these grounds because they are questions of law: NCAT Act, s 80(2)(b).

Was ZAN provided adequate notice of the hearing?

The Tribunal posted the notices of the hearing conducted on 12 August 2015 on 10 August 2015. ZAN submitted to the Appeal Panel that both he and his son first became aware of the applications, and the hearing, only the day before the hearing on 11 August 2015, when contacted by an officer of the Tribunal. The hearing proceeded as scheduled at 2pm the next day. At the time of the hearing neither ZAN nor ZAL were in possession of the applications or any of the documentary evidence before the Tribunal. ZAN's submissions as to adequacy of notice were not contradicted by any other party to the proceedings. The Appeal Panel was satisfied that ZAN only received notice of the applications and the hearing the day prior to the hearing.
In the matter of ZAG v NSW Trustee and Guardian [2016] NSWCATAP 19 at [25]-[26], the Appeal Panel recently summarised the principles applicable to the Tribunal in providing adequate notice of a hearing: 25 The Tribunal is required to comply with the rules of procedural fairness which are sometimes called the rules of natural justice: NCAT Act, s 38(2). Those rules require that a person be given a fair hearing before decisions are taken which affect their interests: Re Refugee Tribunal; ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [101]. A fair hearing includes adequate notice of the hearing so that a party may participate fully and effectively. Commentators Aronson and Groves make the point that notice should alert the recipient to the issues which need to be addressed and provide sufficient information to enable adequate participation: Aronson and Groves, Judicial Review of Administrative Action, (5th ed 2013 Lawbook Co) at 518. 26 There is no legislative requirement to serve a notice of a hearing within a certain time frame. Relevant factors were identified by the Federal Court in Ogawa v Minister for Immigration and Citizenship (2011) 199 FCR 51 at 58 and by Aronson and Groves at 521-522. Based on those authorities, the adequacy of the length of the notice period is dependent on factors including: (1) the complexity of any issue of fact or law to be canvassed at the hearing; (2) any previous opportunities given which enable the person to assemble relevant evidence and submissions; (3) the nature of any further material that may need to be obtained; (4) the ability of the person affected to prepare an argument in response to the notice; and (5) any need for urgency.
ZAN only received notice of the applications, and of the date and time of the hearing, the day before the hearing was conducted. Further, in circumstances where the orders sought were resisted by ZAN, the hearing proceeded without him having seen the applications or any of the documentary evidence before the Tribunal.
The Appeal Panel did not have before it a transcript or sound recording of the hearing the subject of the appeal. The Tribunal's Reasons for Decision did not outline to what extent, if any, the Tribunal endeavoured to provide ZAN with the gravamen of the applications and documentary evidence before the Tribunal. In any event, even if the Tribunal did in fact appropriately provide such a summary in the course of the hearing, no opportunity was provided to ZAN to gather relevant evidence and submissions, or to otherwise prepare argument in contradiction to the matters alleged in the applications and supporting documents. In those circumstances the Tribunal should only have proceeded with the hearing if it were satisfied that there was a need for an urgent determination of the matter.
The Guardianship Division of the Tribunal exercises a protective jurisdiction. The principles which must be applied when exercising functions under the Guardianship Act include that "the welfare and interests of such persons should be given paramount consideration": Guardianship Act, s 4. In exercising this protective jurisdiction the Tribunal may proceed to conduct a hearing and make orders despite a party not having received notice of hearing or the documentary evidence before the Tribunal if the evidence satisfies the Tribunal that it must proceed with such urgency to protect the welfare and the interests of the person.
The Tribunal's Reasons for Decision made reference to ZAM's applications being made on an urgent basis and that it "was mindful that the application for orders was considered on a relatively urgent basis" when considering the duration of the guardianship order. The Reasons for Decision however do not explain the Tribunal's understanding as to whether ZAN was in possession of the applications or documentary evidence. The reasons also do not outline the evidence the Tribunal relied upon to determine that the necessity for urgency outweighed affording ZAN an opportunity to be in possession of the applications and prepare contrary arguments and evidence.
There was some evidence of urgency before the Tribunal in this matter pertaining to the guardianship application. ZAM alleged in her application that: Approximately six months ago, his father moved in with him, and since then, [ZAL] has been making very bad choices about his life. There is a high level of risk of sexual abuse from his father, as [ZAL] has revealed to staff member at [the disability employment service].
The Tribunal's Reasons for Decision, whilst making reference to allegations of ZAL having developed sexualised behaviours since residing with ZAN, made no findings in relation to these alleged behaviours. The Tribunal did not rely upon this issue in concluding that there was currently a need for the appointment of a guardian and made no reference to ZAM's allegation that ZAL was at a high-level of risk of sexual abuse from his father.
The Tribunal's Reasons for Decision do not explain why there was urgency to attend to the financial management application. Whilst there was evidence before the Tribunal that there was concern that ZAL was continuing to make payment for a NSW Housing unit in which he did not reside, these circumstances had been in place for many months, and would not normally provide sufficient justification to proceed with a hearing after providing just one day's notice.
The evidence before the Tribunal justified the applications being dealt with expeditiously. However, the Appeal Panel was not satisfied that the circumstances were of such urgency to warrant the hearing proceeding when ZAN had not been provided with the applications, the documentary evidence, or afforded the opportunity to otherwise prepare for the hearing.

Should the Tribunal have suggested that ZAN seek an adjournment?

In effect this ground of appeal is a ramification of the Tribunal's failure to provide ZAN with adequate notice of the hearing the subject of the appeal.
ZAN submitted to the Appeal Panel that the lack of adequate notice of the hearing had meant he did not know what the documents before the Tribunal contained, and that he had been unable to seek legal advice or otherwise prepare for the hearing. He advised that he had sought and obtained advice from Legal Aid NSW subsequent to the hearing in relation to the applications.
The Tribunal's Reasons for Decision do not make any reference to ZAN seeking an adjournment, or alternatively, the Tribunal raising the prospect of ZAN requesting an adjournment of the proceedings. The Appeal Panel did not have before it a transcript or the sound recording of the proceedings. In the circumstances, the Appeal Panel is prepared to accept that the Tribunal did not raise with ZAN the possibility of his requesting an adjournment.
In the matter of CKG v Public Guardian [2014] NSWCATAP 32 the Appeal Panel previously outlined the obligations the Tribunal is under in relation to self-represented parties: 23 The Tribunal has an obligation under s 38(5)(a) of the NCAT Act to ensure that the parties to the proceedings before it understand the nature of the proceedings. If a party complains of late receipt of material of significance they should be invited to explain why they regard themselves as prejudiced in responding to it in the course of the hearing now on foot. They should be asked why they need further time. They should have explained to them their right to apply for an adjournment or some other direction that might alleviate the prejudice they perceive. It does not follow that the Tribunal must accede to such an application, but the person affected should be given the opportunity in circumstances of the present kind to present their case for an adjournment. 24 In Hess, the Appeal Panel cited with approval observations by Nettle J in the Victorian Supreme Court (Collection House Ltd v Taylor [2004] VSC 49 at [27]) and Mahoney JA in the NSW Court of Appeal (Rajski v Scitec Corporation (19 June 1986, unreported)) on the special care that must be shown in relation to persons who are unrepresented. While the tribunal must not enter into the arena by giving specific legal advice to a party, it must ensure that the nature and effect of its processes are understood. Mahoney JA said in Rajski that a court (and similarly, we interpose, a tribunal) 'will, I think, be careful to examine what is put to it by a party in person to ensure that he has not, because of lack of legal skill, failed to claim rights or to put forward arguments which otherwise he might have done.'
Providing a party with a reasonable opportunity to present his or her case includes offering a self-represented party an adjournment, where appropriate, even if it is not requested: Italiano v Carbone [2005] NSWCA 177.
Given the inadequacy of the notice period, the fact that ZAN did not have a copy of the applications or documentary evidence before the Tribunal and the fact that he did not have adequate time to prepare for the hearing or obtain legal advice, the Tribunal should have advised ZAN that he could seek an adjournment of the proceedings. It does not automatically follow that the Tribunal would have been required to grant an adjournment if it had then been requested by ZAN. Nonetheless, ZAN should have been afforded an opportunity to present his case for an adjournment. In failing to do so in the particular circumstances of this case, the Tribunal can be said to have denied ZAN procedural fairness.

Conclusion

The Appeal Panel was satisfied that ZAN had been denied procedural fairness.
Such a denial ordinarily means that there has been an erroneous decision which should, pursuant to s 81 of the NCAT Act, be set aside or quashed, with the appeal allowed, save in rare circumstances, such as where the breach would have made no difference to the outcome of the case: Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at [28]; Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105 at [40]-[44].
The Appeal Panel was of the view that this is not a case in which it could be said that the breach of procedural fairness would have made no difference to the outcome. The inadequate notice of hearing, and proceeding with the hearing without ZAN or ZAL being in possession of the applications or documentary evidence, meant neither were able to fully express their views on the applications, collate and submit evidence to support their views on the applications, or to obtain legal advice or representation. Had ZAN and ZAL been afforded the opportunity to do so, it is possible that the Tribunal may have reached a conclusion that the appointment of a guardian and/or a financial manager for ZAL was not necessary, or that one or more of the orders should have been made with alternate appointees. Accordingly the Appeal Panel determined that the decision of the Tribunal of 12 August 2015 be set aside and be remitted to the Guardianship Division to be reconsidered with further evidence in accordance with the directions of the Appeal Panel.
In remitting the matters for redetermination, the Appeal Panel formed the view that both the guardianship and financial management orders made by the Tribunal on 12 August 2015 should remain in place until such time as the Guardianship Division makes final orders. The Appeal Panel was aware that the Public Guardian had lodged an application with the Tribunal on 20 November 2015 seeking additional authority so that they may seek to enforce any accommodation decision they felt was required. The Appeal Panel also received oral submissions from ZAM in the course of the hearing that she continued to have concerns that whilst ZAL resided with ZAN, he remained socially isolated, did not have access to necessary services, and he was at risk of losing his NSW Housing Unit. In circumstances where the Appeal Panel was aware that ZAM and the Public Guardian had ongoing concerns for ZAL's welfare, it was appropriate that the orders remain in place until the remitted proceedings are concluded.

Orders

For these reasons, at the hearing on 4 December 2015 the Appeal Panel made the following orders: 1. The name of the appellant be amended to ZAN in this appeal. 2. ZAL be joined as a respondent to this appeal. 3. The appeal is allowed. 4. Subject to order (6), the guardianship order and the financial management order made on 12 August 2015 are set aside. 5. The matters are remitted for redetermination by the Guardianship Division at the same time as and together with the request to review guardianship lodged on 20 November 2015. 6. Order (4) above is not to take effect until the remitted proceedings are finally determined.

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

Amendments 28 January 2016 - [35] change ZAN to ZAL "ZAL was a a high-level risk". [36] change ZAN to ZAL. 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: 28 January 2016

Trustee and Guardian Act 2009(NSW)

At a glance

Court

Decision date

Before

Source

Judgment (12 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (13)

Cited By (7)