ZAV is an 80 year old woman of Polish descent who lives with her foster daughter. The appellant, ZAU, says he has known ZAV for about 25 years and that he was in more frequent contact after her husband died 14 years ago. As a result of concerns he had about the level of care being provided to ZAV, and the way her finances were being managed, he moved into her house in March 2015. A few months earlier, ZAV's foster daughter had applied to the Tribunal for orders under the Guardianship Act 1987 (NSW) reviewing an enduring Power of Attorney appointment and an Enduring Guardian appointment in relation to ZAV. After ZAU became involved she also applied for the appointment of a financial manager and a guardian.
On 8 May 2015 the Tribunal appointed the Public Guardian as ZAV's guardian for four months. Neither ZAU nor ZAV attended that hearing. ZAU applied for a review of the guardianship order and, in any case, the Tribunal would have had to review the order because it was due to expire on 8 September 2015. A second hearing was held on 18 September 2015. ZAU and ZAV both attended. ZAU acknowledges that by this time ZAV had dementia, a disability which meant she could not make important decisions about her life. But ZAU did not agree with the Tribunal's ultimate decision to appoint the Public Guardian. In his view the Tribunal should have appointed him as ZAV's guardian. He disagreed with the following findings of the Tribunal at [62] as to why he was not an appropriate person to be appointed:
… ZAU's involvement in ZAV's life was not primarily motivated by his concern for her health and welfare. Although he has sought to paint himself as her champion, this conclusion is not supported by the evidence. Instead his actions in arranging for her to sign over half of her house to him, living with her but making no contribution to the costs of this; changing the locks on the house; choosing not to contact her family despite the concerns he claimed to have; and making contact with her family, friends and service providers difficult, all support the conclusion that ZAU was motivated by his own interest in isolating ZAV and taking financial advantage of her.
He also objected to the fact that the period of appointment was three years instead of six months as suggested by the Public Guardian.
ZAU has appealed from both the May 2015 and the September 2015 decisions of the Tribunal but lodged only one Notice of Appeal. We have treated this notice as effectively lodging two separate appeals. He did not appeal against the decisions to make a financial management order or to appoint ZAV's foster daughter as a financial manager.
ZAU is entitled to appeal on a "question of law" but needs the Appeal Panel's permission before he can appeal on any other ground: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2)(b).
ZAV did not attend the appeal hearing but was represented by a guardian ad litem, Dr Ainsworth. He provided a report which stated that ZAV was content residing with her foster daughter and did not want any contact with ZAU. He submitted that the appeal should be dismissed. Although a party, the Public Guardian chose not to play any role in the proceedings.
We have decided not to accept the appeal against the first decision because it was lodged out of time. The appeal has no merit, nor does it have any utility given that the 8 May 2015 orders are no longer operative. We have decided to dismiss the appeal against the second decision because the Tribunal did not make any legal mistake, or "error of law" in reaching its decision. In addition, there is no basis for giving ZAU permission to appeal on grounds other than a question of law. The Tribunal made findings of fact based on relevant and reliable evidence; it applied the correct law to those factual findings and gave clear and comprehensive reasons for its decision.
[2]
Appeal lodged out of time
An internal appeal must be lodged "within 28 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision (whichever is the later)." Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules), r 25(4)(c). The Tribunal may extend the time for the lodgement of an appeal: NCAT Act, s 41. ZAU did not apply in writing for the time to be extended but we accepted his verbal application to that effect at the hearing.
The Tribunal gave its orders on 8 May 2015. During the appeal hearing, ZAU said that he found out about the orders by telephone sometime in June 2015 but did not say who contacted him or who he contacted. However, in correspondence to the Tribunal, ZAU advised that the Public Guardian had made him aware of the guardianship order on 26 May 2015.
The Tribunal's file records that the reasons for decision were posted to ZAU on 26 August 2015. Rule 13 of the NCAT Rules applies to the "service, giving and lodgment of notices or documents". Pursuant to the "posting presumption rule" in r 13(4), ZAU is taken to have been given the reasons on 1 September 2015, the fourth working day after the letter was posted.
Even if ZAU did not receive the letter, the posting presumption rule applies because there is no evidence that the letter was not delivered: Soong v Deputy Commissioner of Taxation [2011] NSWCA 26. We find that ZAU was given reasons for the decision on 1 September 2015. The Notice of Appeal was filed on 26 October 2015. As it should have been lodged within 28 days, it is 27 days late.
[3]
Should the appeal be accepted out of time?
The principles for determining whether an appeal should be accepted out of time were set out by the Appeal Panel in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]. In brief, they are that:
(3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider:
(a) The length of the delay;
(b) The reason for the delay;
(c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and
(d) The extent of any prejudice suffered by the respondent (to the appeal).
ZAU had 28 days to appeal. He did not appeal for a further 27 days. That is a relatively long delay. ZAU did not give any particular reason for the delay in lodging an appeal except to say that he did not receive the reasons until shortly before the September hearing.
The reason ZAU says he is appealing, despite the fact that the first decision has now been superseded, is that the Tribunal has not done the "right thing" and its processes and findings about him and about ZAV, should be reviewed. While he appreciated that he is not alleging corruption or any other significant maladministration, he submitted that the "system" would be "weakened" if the mistakes the Tribunal made are not corrected.
ZAU's objection to the 8 May 2015 decision was that the evidence relied on by the Tribunal to conclude that ZAV had a disability was flawed. Despite not attending the hearing, ZAU sent the Tribunal a report from Dr Guerri-Guttenberg dated 29 April 2015 which expressed the brief opinion that ZAV was "in good stable mental health at this time" and "is capable of making her own decisions." ZAU is critical of the other evidence relied on by the Tribunal to reach the conclusion that ZAV was a "person in need of a guardian": Guardianship Act, s 14(1). That expression is defined in s 4 as "a person who, because of a disability, is totally or partially incapable of managing his or her person." ZAU is also critical of the Tribunal's conclusion that ZAV was at risk living in her home with him.
He alleged that the one of the assessments administered to ZAV to determine her capacity, a Rowland Universal Dementia Assessment Scale (RUDAS), was not conducted in Polish. He also said that the person who was said to have assisted ZAV had "limited English language ability." He suggested that, "the questions were probably read too fast for ZAV to understand and also possibly she was distracted by pain." He said he obtained the questionnaire for the RUDAS assessment from a hospital and he knows that ZAV would not have had any problems answering those questions. There was no report from a specialist despite the registered nurse's recommendation that ZAV be referred to a geriatrician.
We understand the RUDAS to be a short cognitive screening instrument designed to minimise the effects of cultural learning and language diversity on the assessment of baseline cognitive performance. ZAU did not say that he was present when the RUDAS assessment was carried out or that he has any expertise in assessing cognitive impairment. His opinions as to how the test was administered or whether ZAV would have been able to answer the questions can be given no weight. The assessment was part of an Aged Care Assessment Team (ACAT) report prepared by a registered nurse. It was reliable evidence that ZAV was a "person in need of a guardian". The Tribunal noted that the only evidence which was inconsistent with this evidence, and other lay evidence which supported it, was the report from Dr Guerri-Guttenberg which ZAU had provided to the Tribunal.
The Tribunal was critical of that opinion because Dr Guerri-Guttenberg had not recorded that any testing had been conducted to determine ZAV's capacity. Dr Guerri-Guttenberg was not available to give evidence to the Tribunal. The Tribunal preferred the evidence from the registered nurse who had conducted an ACAT assessment including various screening tests. That evidence satisfied the Tribunal that ZAV was a person with a disability which prevents her from making informed decisions about her life.
ZAU was self-represented. He did not characterise the Tribunal's finding that ZAV had a disability which affected her decision making capacity as raising any particular question of law. We must be fair to both parties but we must also ensure that a self-represented party is not disadvantaged: Hamod v State of New South Wales [2011] NSWCA 375 at [309] - [316]. That may involve suggesting a question of law which the self-represented person has not articulated: XYZ v State Trustees Limited [2006] VSC 444 at [43].
In John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13] to [18] (23 October 2014) the Appeal Panel gave several examples of questions of law including:
1. whether the Tribunal failed to take into account a relevant consideration which the decision maker was bound to take into account;
2. making a finding for which there is no evidence;
3. whether there has been a failure to provide adequate reasons;
4. whether the Tribunal identified the wrong issue or asked the wrong question;
5. whether a wrong principle of law had been applied; and
6. whether there was a failure to afford procedural fairness.
The only possible questions of law which we have been able to identify from ZAU's submissions is that the Tribunal made a finding that ZAV was a person in need of a guardian, without any evidence to support that finding or that the Tribunal gave inadequate reasons for that finding.
It is an error of law for a decision maker to make a finding for which there is no evidence: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156. 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...'
There was evidence from a registered nurse which supported the Tribunal's finding of fact. The Tribunal gave reasons for preferring that evidence to the evidence of Dr Guerri-Guttenberg. The Tribunal was justified in giving no weight to an opinion of a general practitioner apparently given without conducting any assessments.
Given the relatively long delay, the absence of any justifiable reason for the delay and the poor prospects of success of the appeal, we refuse to extend time for an appeal from the first decision to be lodged.
[4]
Appeal from second decision
ZAU submitted that he should have been appointed as ZAV's guardian instead of the Public Guardian. He disagrees with the adverse findings the Tribunal made especially the finding that he "has a financial motivation in the care he claimed to provide for [ZAV]." The outcome ZAU seeks is that he be appointed as ZAV's guardian, that she returns to live in her own home, that she maintains contact with her foster daughter, that her medical issues are addressed and that she be reunited with the Polish community in Sydney.
As with the appeal against the first decision, we must ensure that ZAU, as a self-represented party, is not disadvantaged. His grounds of appeal on a question of law could be characterised as either misconstruing the law or making a finding of fact for which there is no evidence.
The Tribunal correctly identified and applied the law when determining who should be appointed as the guardian. At [71] the Tribunal referred to s 15(3) of the Guardianship Act which states that:
A continuing guardianship order appointing the Public Guardian as the guardian of a person under guardianship shall not be made in circumstances in which such an order can be made appointing some other person as the guardian of the person.
At [69], the Tribunal also identified the matters listed in s 17(1). They are the matters about which the Tribunal must be satisfied before appointing a private 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.
These are the correct legal principles and the Tribunal made no error in identifying or applying them.
Some of the findings of fact the Tribunal made which are relevant to ZAU's suitability to be appointed as a private guardian were that:
1. he arranged for ZAV to see a lawyer to prepare a "care agreement" which involved the transfer of ownership of half of her house to him;
2. he moved ZAV to his ex-wife's house; and
3. he refused to cooperate with ZAV's family or the Public Guardian.
The Tribunal concluded that ZAU was not a reliable witness and rejected his assertion that ZAV was not cognitively impaired until June 2015 or that he only ever did what she asked him to do.
As outlined at [22] above, a finding of fact can only constitute an error of law if there is no probative evidence to support that finding. The evidence before the Tribunal which supported its findings was given by ZAV's foster daughter and two of ZAV's cousins. The person who had been appointed as ZAV's guardian also gave evidence. No-one, apart from ZAU, supported his version of events. We are satisfied that there was probative evidence to support the Tribunal's findings.
ZAU could have applied for permission (or 'leave') to appeal on grounds other than a question of law. The general principles applicable to such applications were set out by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 (9 April 2014) at [84]:
The general principles derived from these cases can be summarised as follows:
(1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];
(2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve:
(a) issues of principle;
(b) questions of public importance or matters of administration or policy which might have general application; or
(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;
(d) a factual error that was unreasonably arrived at and clearly mistaken; or
(e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed,
BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];
(3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there.
None of the submissions ZAU made meet these criteria. It was open to the Tribunal on the basis of the evidence of several witnesses to make the findings that it did. ZAU's disagreement with those findings does not justify granting leave to appeal.
Finally, ZAU objected to the fact that the period of appointment was three years instead of six months as suggested by the Public Guardian. The Tribunal has power to renew a guardianship order for up to 3 years. Section 18(1)(b) states that:
(1) A continuing guardianship order has effect:
(b) in the case of an order that is renewed-for such period (not exceeding 3 years from the date when it was renewed) as the Tribunal may specify in the order.
The Tribunal gave the following reason for renewing the guardianship order for three years:
… [ZAV] continues to be vulnerable to exploitation and manipulation by others and a three-year order will provide continuity and certainty for her and her family and will avoid the stress of returning to the Tribunal for regular reviews.
The Tribunal is not obliged to accept a submission by the Public Guardian as to the length of the order. The Tribunal considered that a three-year order was appropriate. It made no error in coming to that view.
The other points made by ZAU are not grounds for appealing against the Tribunal's decision. They include criticisms of the Public Guardian's decisions since the appointment. The Appeal Panel does not have power to review the conduct of the Public Guardian after an order has been made.
[5]
Orders
1. ZAU's application to lodge an appeal out of time from the Tribunal's decision of 8 May 2015 is refused.
2. ZAU's application for leave to appeal on grounds other than a question of law from the Tribunal's decision of 18 September 2015 is refused.
3. ZAU's appeal from the Tribunal's decision of 18 September 2015 otherwise dismissed.
[6]
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: 23 February 2016
Parties
Applicant/Plaintiff:
ZAU
Respondent/Defendant:
Public Guardian
Legislation Cited (4)
is the later)." Civil and Administrative Tribunal Rules 2014(NSW)