ZAR v NSW Trustee and Guardian

Basis of appeal

1. ZAR is entitled to appeal on a "question of law" but needs the Appeal Panel's permission or 'leave' before he can appeal on any other ground: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2)(b). Many of ZAR's grounds of appeal related to fact finding. Drawing on principles set down in several other courts and tribunals, the Appeal Panel summarised the circumstances in which leave may be granted for a person to appeal from findings of fact: Collins v Urban [2014] NSWCATAP 17 at [84]. Two examples are where the finding is "unreasonably arrived at and clearly mistaken" or where the Tribunal has "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."
2. ZAR was not represented by a lawyer. We must ensure that a self-represented party is not disadvantaged: Hamod v State of New South Wales [2011] NSWCA 375 at [309] - [316]. In proceedings in the Tribunal's protective jurisdiction, that may involve suggesting a question of law which the self-represented person has not articulated: XYZ v State Trustees Limited [2006] VSC 444; (2006) 25 VAR 402 at [43] (in the context of proceedings under the Guardianship and Administration Act 1986 (Vic)); see also, in a different context, Donoghoe v Compass Housing Services [2015] NSWCATAP 97; Kendray v New South Wales Land and Housing Corporation [2015] NSWCATAP 139 at [30].
3. We have divided the grounds of appeal into the following categories: 1. breach of procedural fairness; 2. making findings without evidence or against the weight of the evidence; and 3. failing to take into account a relevant consideration.
4. The purported grounds of appeal which we have not addressed because they do not relate to any issue the Tribunal has power to decide are: 1. ZAS made false and misleading statements and should be recommended for criminal prosecution; 2. ZAS's motivations for applying to the Guardianship Division were not about ZAT's wellbeing but about his own financial situation; 3. the Public Guardian has been negligent in its duties.
5. The Guardianship Division's application forms remind applicants that "… it is an offence to make a false or misleading statement in an application". ZAR asks the Appeal Panel to refer ZAS for criminal prosecution for making "false and misleading" statements. We have no power to make such a referral. Similarly, ZAS's motivation making the applications is entirely irrelevant to the decisions that the Guardianship Division must make. Finally, this Tribunal has no jurisdiction in these proceedings over the performance by the Public Guardian of its duties.

Procedural fairness

1. ZAR identified procedural fairness as a ground of appeal. He said that, at the Guardianship Division hearing, ZAS was allowed to "talk non-stop until he had said everything he wanted to say" whereas ZAR was continually cut short and interrupted. ZAR also said that the Tribunal did not telephone ZAT a second time to ask for her response to the evidence given by the manager of the nursing home as he had requested.
2. The Tribunal must take such measures as are reasonably practicable "to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings": NCAT Act, s 38(5). That provision is a statement of the common law "hearing rule". That rule requires that a decision maker hear a person before making a decision affecting their interests. The obligation is flexible and depends, among other things, on the statutory context: Kioa v West (1985) 159 CLR 550 per Mason J at 585. One of the primary aims of the Guardianship Act 1987 (NSW) is to protect vulnerable people from neglect, abuse and exploitation: Guardianship Act, s 4(g). Another is the preservation of family relationships: s 4(e). In exercising any function, "the welfare and interests" of the subject person "should be given paramount consideration": Guardianship Act, s 4(a).
3. Each party was given an opportunity to make written submissions to the Tribunal and to provide any relevant documents before the hearing. Both ZAR and ZAS attended the hearing in the Guardianship Division and were given the opportunity to make submissions and answer questions. We agree with ZAR that the Tribunal Members interrupted him on several occasions to direct him to respond to the issues and that he spoke for less time than ZAS.
4. There is no requirement that parties be given equal periods of time to present their case or that they be permitted to speak uninterrupted. All that is required is that each party be given a "reasonable" opportunity to be heard. ZAR was given that opportunity. He did not identify any relevant points which he was unable to make, either because he was interrupted or because of the time he was given. We are satisfied the Tribunal afforded ZAR procedural fairness.
5. The second basis on which ZAR alleges that he was denied procedural fairness relates to ZAT. ZAT gave evidence by phone but the Tribunal did not ask her to remain on the line for the entire hearing. That was appropriate given the medical evidence the Tribunal had before it as to her level of cognition.
6. We accept ZAR's characterisation of his mother's evidence that she was very definite as to that she wanted to return to live in her own home but that the Tribunal refused to ring her a second time to get the truth about allegations made by the nursing home manager despite ZAR's request.
7. The nursing home manager gave evidence that ZAT has been assessed by ACAT (Aged Care Assessment Team) as needing permanent high care. At the nursing home she has access to 24 hour nursing care. She was assessed as needing personal care, toileting, set up for meals and one to one assistance when walking. The manager accepted that ZAT would be able to live at home if 24 hour care was available. She expressed the view that ZAT was unable to give informed consent to the taking of 'major medications'.
8. In the context of determining who should be the financial manager if a financial management order was made, the Tribunal commented that if ZAT were to go home she would need a high level of support. ZAR responded saying that he would like to dispute the manager's evidence. He said that, "If you asked mum who showers her, who takes her to the toilet, who dresses her, she does that all by herself". The presiding member responded by saying, "Well, that's not the evidence from the manager".
9. While every detail of the evidence given in the absence of a party is not required to be put to that party, the substance or gravamen of that evidence should be disclosed: Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247; Re Pergamon Press Ltd [1971] Ch 388; Ansell v Wells (1982) 43 ALR 41.
10. We accept, as ZAR submitted, that ZAT was not given an opportunity to respond to the nursing home manager's evidence about the level of support she requires. We do not regard that as a breach of procedural fairness for three reasons.
11. Firstly, ZAT was not at the hearing because ZAR decided that she was not well enough to attend. She excused herself on the telephone because she felt tired and the remainder of the hearing proceeded without her. The Tribunal found that she displayed some short term memory loss and word finding difficulties.
12. Secondly, there was probative evidence from expert witnesses corroborating the nursing home manager's evidence. That evidence included an ACAT assessment and the evidence of Dr Lonie, a consultant clinical neuropsychologist. She expressed the opinion in her report that ZAT's needs will inevitably increase with the progression of her dementia illness. She concluded that ZAT lacks the capacity to make decisions about her accommodation and support needs even though she is able to express her preferences on such matters and give some reasons for her views.
13. Thirdly, the Tribunal did not have to make a finding as to the level of care ZAT required. Rather, its task was to determine her decision-making capacity. It follows that even if ZAT had contradicted the nursing home manager's opinion as to the level of care required, that response could not have made any difference to the decision: Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 145.

Making findings without evidence or against the weight of the evidence

Principles

1. It is an error of law for a decision maker to make a finding for which there is no evidence, but a finding of fact does not constitute an error of law even if that finding: ' ... is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way ...': Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156.
2. If there is evidence to support a finding of fact, but the appellant disagrees with the weight given to that evidence, then that is not a question of law. The Appeal Panel must grant leave before an appellant can appeal on that ground.
3. There are three areas of fact finding that relate to this ground of appeal. The first concerns the opinion of doctors as to ZAT's disability and capacity; the second concerns ZAR's ability to care for his mother at home and the third relates to allegations that ZAR has a conflict of interest and has financially exploited his mother.

Medical evidence

1. One of the legal issues in relation to the application for a guardianship order was whether ZAT is someone for whom the Tribunal could make an order because she has a disability which prevents her from being able to make important life decisions: Guardianship Act, s 14(1); s 3 and s 3(2) (definition of "person in need of a guardian" and definition of "person with a disability"). The Tribunal concluded at [63] on the basis of medical evidence of Dr Thoo, a geriatrician, and Dr Lonie, that ZAT has dementia and is of advanced age and those conditions prevent her from making important life decisions. Consequently she is a person for whom the Tribunal could make a guardianship order.
2. ZAR submitted that the Tribunal should not have been satisfied that during the period from June to August 2015, ZAT had a disability or that she lacked capacity to make certain decisions. ZAR contends that no weight should have been given to the evidence of Dr Thoo and Dr Lonie. The reasons he gave for that submission were that their reports were based on false allegations that ZAR was stealing money, they were not fair tests of dementia and ZAT was not in the right state of mind to answer the questions. ZAR also pointed out that his mother was very tired and did not have her glasses during one assessment and that another assessment relied on mathematical questions when his mother had never been good at maths.
3. Against the reports from the doctors, ZAR submits that during the same period a general practitioner, Dr Staniforth, and the three solicitors who witnessed various enduring powers of attorney and enduring guardianship appointments, all formed the view that ZAT had capacity.
4. Dr Lonie prepared a report at the request of ZAS. The report, dated 22 September 2015, was based on interviews with ZAT on 3 and 8 September 2015. She concluded that: The level of cognitive impairment ZAT is presently displaying is in keeping with a moderately advanced stage neurodegenerative illness (dementia).
5. Contrary to ZAR's submission, Dr Lonie did not assess ZAT as having "mild" dementia. ZAR may have been confused about the diagnosis on the basis of Dr Lonie's comment that: She obtained an overall score of just 44/100 on this measure (Addenbrooke's Cognitive Examination - Version III) where scores of less than 82/100 are taken to be indicate of a very early stage dementia.
6. ZAT's score was significantly below 82/100.
7. ZAR speculates that ZAS "poisoned the mind" of Dr Lonie with false allegations about him. Dr Lonie lists at page 4 of her report, the assumptions she made in preparing it. The only mention of ZAS is that he conveyed to her the types of financial matters that ZAT would be likely to be involved in, if she was responsible for managing her own financial affairs. There is no disclosure of any information conveyed by ZAS of ZAR's involvement in his mother's affairs and no other probative basis for the assumptions ZAR has made.
8. In response to ZAR's submission that ZAT cannot stay awake for more than 10 minutes, did not have her glasses on for the second assessment and could not be expected, at her age, to answer mathematical questions, the Tribunal was satisfied that Dr Lonie undertook a professional assessment and that none of these factors affected her conclusion. Dr Lonie expressly notes at [41], that, "ZAT gave her best efforts throughout the course of having her cognitive function assessed".
9. Dr Lonie and Dr Thoo are specialist medical practitioners. The findings the Tribunal made about disability and capacity were based on their evidence which was highly probative. Those findings were not "unreasonably arrived at and clearly mistaken" nor did the Tribunal go about its fact finding process in a way that was likely to produce an unfair result. There is no other basis for granting leave for ZAR to appeal from these findings.

ZAR's ability to care for his mother at home and to be appointed guardian

1. The second area of factual dispute related to ZAR's ability to care for his mother at home and his suitability to be her guardian.
2. When determining who should be appointed as the guardian, the Tribunal understood that the Public Guardian could not be appointed if there was a private person who could be appointed: Guardianship Act, s 15(3). The Tribunal also referred to s 17(1) which lists the matters about which it must be satisfied before appointing a person as a guardian: (a) the personality of the proposed guardian is generally compatible with that of the person under guardianship, (b) there is no undue conflict between the interests (particularly, the financial interests) of the proposed guardian and those of the person under guardianship, and (c) the proposed guardian is both willing and able to exercise the functions conferred or imposed by the proposed guardianship order.
3. The Tribunal decided that ZAR had an undue conflict and that he was not "able" to exercise the functions.
4. The conflict of interest was identified at [72] as being that ZAR was occupying part of ZAT's property which may need to be sold or rented to meet her needs if she could not return to reside at her home. ZAR raised for the first time on appeal the fact that the house has been exempted from ZAT's assets when determining aged care fees and pension. Consequently, in his view, there is no financial conflict. Further ZAR says that he was not in sole control of the bank accounts. He was only responsible for paying accounts that could be done by Bpay on the computer.
5. There was probative evidence in support of the Tribunal's conclusion that there was undue conflict of financial interest between ZAR and ZAT. ZAR had intermingled his financial affairs with his mothers' affairs. In addition, the exemption of the home does not remove the conflict of interest as her home may still need to be sold or rented to meet her needs in the future. Those needs could include occupying a single room at the nursing home rather than sharing with others. This gives rise to a clear conflict of interest for ZAR.
6. The Tribunal's findings were not "unreasonably arrived at and clearly mistaken" nor did the Tribunal go about its fact finding process in a way that was likely to produce an unfair result. There is no other basis for granting leave for ZAR to appeal from these findings
7. The Tribunal recorded that both Baptist Care and Dr Staniforth perceived that ZAR did not adequately care for or support ZAT when she was living at home. The Tribunal also recorded that ZAR disputed the allegations regarding lack of care and submitted a number of photos depicting ZAT on outings.
8. The Tribunal noted that ZAR disputed the allegations regarding lack of care on his part. The Tribunal recorded ZAR's evidence at [53]. He alleged that ZAS was uncaring and wanted to lock ZAT up at the nursing home when she had a strong desire to return home. ZAR gave evidence that a couple who were friends of his wife had moved into ZAT's home and would provide 24 hour care and support for ZAT if she returned home. According to ZAR, the Tribunal should have drawn an inference on the basis of the failure of ZAS to provide any documents from police that the police did not find any problems.
9. ZAS considered that ZAR had not been caring for ZAT adequately at home and that her needs were being met in the nursing home.
10. The Tribunal concluded at [49], that the two sons were unable to communicate with each other and had differing views of what was in their mother's best interest in relation to important life decisions.
11. The Tribunal found, at [57], that ZAR did not appreciate the extent of his mother's needs "as he disputed the medical evidence". The Tribunal also noted that he "had not been communicating with doctors on her behalf and was not able to take account of other parties' views of what may be in ZAT's best interests ..." Finally, the Tribunal noted at [72], that: He could not communicate with other family members. Independent service providers have indicated in the past he had not paid for Baptist services on behalf of ZAT when she resided at home and there were concerns expressed about the level of care in the past and that ZAR would not communicate with members of the nursing team.
12. Apart from ZAT herself and ZAR, all the other participants proposed an independent guardian. The Tribunal considered there was no other family member who could make decisions on behalf of ZAT who also would not have a potential conflict of interest particularly in the area of accommodation decisions.
13. We agree with ZAR that the observation that there were "concerns expressed" about the level of care ZAR had provided to his mother is a weak basis for concluding that he did not appreciate the extent of his mother's needs. Despite this flaw in the Tribunal's fact finding, we are not satisfied that the finding was "unreasonably arrived at and clearly mistaken". There was other evidence to support ZAR's lack of ability to be appointed as guardian. That evidence included the poor communication ZAR had with doctors and the nursing team and his failure to pay for services provided by Baptist Care. There is no basis for granting leave for ZAR to appeal from these findings.

Allegations of financial exploitation

1. The third area of dispute in relation to findings of fact was that ZAS alleged that ZAR "intimidates and coerces our mother into making financial decisions that benefits himself", that ZAR has changed ZAT's will "at least twice that I know of to benefit himself as the sole beneficiary" and that he has "taken all of our mother's savings". In another application ZAS claimed that ZAR "uses Mum's bank account for his own lifestyle account". In this appeal, ZAR alleged that ZAS stole ZAT's money.
2. The Tribunal noted at [85], that "... an attorney is in a fiduciary relationship with the person whose affairs they manage" and that "an attorney ... must not obtain a personal benefit other than specifically provided for in the executed enduring power of attorney": Powers of Attorney Act 2003 (NSW), s 12(1). The Tribunal concluded at [87] and [95] that "... it was not able to test the veracity of the various allegations made by ZAS and ZAR" partly because no financial records were provided.
3. Nevertheless, the Tribunal found that as of 2007 ZAT had approximately $3.2 million in funds which had subsequently been given to her sons. There was a dispute between them as to whether there had been a fair division. ZAT now owned a property which was subject to a mortgage. The Tribunal had insufficient information to make a findings as to whether she had any savings and concluded [24] that, "there was considerable conflict between her sons and accusations and counter accusations of misuse of ZAT's' funds".
4. It is apparent from these reasons that the Tribunal regarded both sons as responsible for ZAT's current financial situation. The Tribunal made no finding of fact as to what had happened but noted at [96], that: There may be a need to trace the funds of ZAT and ascertain what assets she owns to ensure her future needs can be met at a nursing home or if she is to return home with fulltime care in place. There may be a need to rent or sell her property to provide for her future needs.
5. Each brother made serious allegations against the other. The Tribunal did not consider that it had sufficient evidence to make a finding that either ZAR or ZAS had financially exploited their mother. In circumstances where the Tribunal could not be comfortably satisfied that financial exploitation had occurred, that approach was correct: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. The Tribunal did not go 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".

Failing to take into account a relevant consideration which the decision maker was bound to take into account

1. It is an error of law for a decision maker to fail to take into account a relevant consideration if it is bound to take that consideration into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24.
2. As Deane J said in Sean Investments Pty Ltd v MacKellar [1981] FCA 191; (1981) 38 ALR 363 at 375, the decision-maker is not to be criticised for failing to consider everything which the affected party has chosen to include in an "exhaustive list of all the matters which the decision-maker might conceivably regard as relevant".
3. Once the Tribunal had decided that ZAT was someone for whom the Tribunal could make an order, because she has a disability which prevents her from being able to make important life decisions, the Tribunal needed to address the question of whether it should make such an order: Guardianship Act, s 14(2).
4. When deciding whether or not to make a guardianship order the Tribunal is to have regard to the matters set out in s 14(2) of the Guardianship Act: (2) In considering whether or not to make a guardianship order in respect of a person, the Tribunal shall have regard to: (a) the views (if any) of: (i) the person, and (ii) the person's spouse, if any, if the relationship between the person and the spouse is close and continuing, and (iii) the person, if any, who has care of the person, (b) the importance of preserving the person's existing family relationships, (c) the importance of preserving the person's particular cultural and linguistic environments, and (d) the practicability of services being provided to the person without the need for the making of such an order.
5. The Tribunal noted at [65] that these matters have no hierarchy or weighting. Rather, the Tribunal must undertake a balancing exercise taking into account the principles in s 4 of the Guardianship Act which are: 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.
6. Section 4 directs the Tribunal to "observe" certain principles. That direction is arguably stronger than the direction in s 14(2) to "have regard to" certain matters. The Tribunal must at least take the matters in both s 4 and s 14(2) into account and give them weight as fundamental elements in coming to a decision; Re Toohey and Another; Ex parte Meneling Station Pty Ltd and Ors (1982) 44 ALR 62 at 67 (Gibbs CJ).
7. The Tribunal concluded that because there was a dispute about where ZAT should live, the care and services she should receive and who was responsible for making decisions relating to health care and medical consents, a guardianship order needed to be made.
8. ZAR submitted that the Tribunal failed to take account of ZAT's views and other matters it was bound to take into account: Guardianship Act, s 14(2). In particular, ZAR submitted that the Tribunal did not take into account his mother's view that she wanted to return home to live. According to ZAR, ZAT was desperate to return home and the Tribunal took no account of that view. The Tribunal recorded ZAT's view at [57] of its reasons: She was keen to stay in her own home as proposed by ZAR.
9. The obligation to take a person's views into account does not mean that the Tribunal must make a decision which is consistent with those views. In any case, it was not the Tribunal's role in these proceedings to decide where ZAT should live. We are satisfied that the Tribunal took into account the relevant principles in s 4 and s 14(2) as fundamental elements in coming to a decision.

Orders

1. 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: 15 April 2016