ZBT v ZBU

The Decision under Appeal

1. At the Tribunal's hearing in January 2016 those in attendance included Z, U and T. T has a brother, who will refer to as 'N'. N was in attendance. We note at this point that T lives in Binnaway, which is about 500kms by road from Unanderra. On the other hand, his brother, N, lives in West Wollongong.
2. In addition, there was a case manager from the specialist mental health unit, and a case manager from the aged care facility. An officer of the Public Guardian participated by telephone.
3. In its reasons for decision for its financial management order, the Tribunal referred to the concern of Z's two sons over their mother making large withdrawals from her bank account, and giving the money to a grandson, the son of N. The Tribunal found that Z had cognitive impairment and paranoia. It was satisfied that she was not capable of managing her financial affairs. The Tribunal summarised Z's assets (own home, bank account with about $80,000 invested, pension). It referred to her likely future need for a permanent move to aged care, and the need to find the refundable accommodation deposit (RAD) (around $400,000). It noted that her house would need to be sold to cover that sum. It was satisfied there was a need to appoint a financial manager.
4. In that regard it noted that the dominant consideration was the welfare of the subject person, Z. The potential financial managers were a private financial manager or the NSW Trustee and Guardian. In this instance, N and T were proposed as joint financial managers.
5. In its reasons in respect of the guardianship order, the Tribunal had rejected a similar proposal that the brothers be joint guardians. It found N not suitable. N's disruptive conduct at the hearing, and a recent history of estrangement from his mother, combined to lead the Tribunal to that conclusion. In light of these concerns, and in response to a question from the Tribunal, T had indicated that he would be happy to be appointed as sole guardian.
6. The Tribunal then commenced its consideration of the financial management order. It referred to the tests for determining whether a person remains capable of managing their financial affairs, and if found not capable, the tests for assessing the need or otherwise to make an order. Finally, it referred to the principles that govern the appointment of a financial manager, in particular those set out in 25M of the Act which provides: 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. (2) Despite section 61 of the Civil and Administrative Tribunal Act 2013, an order under subsection (1) (a) does not authorise the person appointed as manager to interfere in any way with the estate concerned unless: (a) such directions of the Supreme Court as are relevant to the management of the estate have been obtained, or (b) the NSW Trustee has, under Division 2 of Part 4.5 of the NSW Trustee and Guardian Act 2009, authorised the person to exercise functions in respect of the estate. (3) However, the person appointed as manager may take such action as may be necessary for the protection of the estate (including action specified by the Tribunal) pending the directions of the Court or authorisation by the NSW Trustee.
7. The Tribunal then went on to refer to the case of Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227. Both Mr Byrnes (for the appellant) and Ms Kaiti (separate representative) made submissions to us to the effect that the Tribunal had misunderstood and misapplied Holt's case. The Tribunal said: 43. In Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227, the Court said that the dominant consideration in making orders about financial managers was the welfare of the person. The President of the Court of Appeal emphasised the Court's broad discretion in deciding who should be financial manager but also set out possible considerations as to the competing advantages of the then Protective Commissioner and a family member as manager of the estate. ...
8. The Tribunal went on to outline considerations that lay on both sides of this choice.
9. The Tribunal concluded its discussion as follows: 48. [T] said he only wanted to be appointed as financial manager if he was jointly appointed with his brother. He confirmed that he had never been bankrupt, convicted of offences of dishonesty, or that he had no intermingling of financial affairs with his mother. He was willing to comply with the requirements of the NSWTAG. He has experience in managing his own finances and is generally good with money. He confirmed he would be willing to travel to Wollongong to sign documents if necessary. 49. Despite this, the Tribunal considered that it would be in [Z's] best interests to appoint the NSWTAG rather than [T] as he indicated his opposition to the prospect that her house may need to sold to cover her RAD, stating that this is not what his mother would want. Whilst it is important that financial manager take into account the views of the person whose affairs they are managing, they must ultimately use their own judgement about what is in the person's best interests financially. A financial manager must be willing to consider all the options and the Tribunal was not satisfied that [T] would do this. 50. In coming to the view that the NSWTAG should be appointed, the Tribunal also had regard to the amount of work which was likely to be involved initially at least in managing [Z's] affairs, and considered that it was preferable for her to have an organisation experienced in the necessary tasks appointed as manager. The Tribunal also had regard to [Z's] views. The Tribunal also noted [Z's] ongoing paranoia beliefs about financial matters, and considered that appointment of an independent manager would avoid the possible damage to her relationship if she blamed her son for financial decisions which she did not like. 51. On balance, the Tribunal was satisfied that the estate of for [sic] [Z] should be committed to the NSW Trustee and Guardian.

The Appeal

1. An appeal may be made by a party against a Tribunal decision in relation to any 'question of law', and the appeal may put in issue 'other grounds' (i.e. issues other than questions of law), if the Appeal Panel gives leave for that: Civil and Administrative Tribunal Act 2013, s 80(2)(b). T was not named as a party in the proceedings below. However, pursuant to s 3F(5)(d) of the Act, the person, if any, who has care of the person to whom an application for a financial management order relates, is a party to the proceedings. The Appeal Panel accepts that T had care of Z at the relevant time and was therefore a party to the proceedings.
2. The Appeal Panel sat on 6 June 2016 and 25 August 2016.
3. On 6 June 2016, Mr Byrnes appeared on behalf of the appellant, and Ms Kaiti appeared as Z's separate representative.
4. Mr Byrnes stated on the first day that he had not been given access to the relevant Tribunal file, and wished to be provided with access. Ms Kaiti expressed a similar concern. She advised the Appeal Panel that she had listened to the CD of the proceedings on 13 January 2016.
5. The Appeal Panel concluded that it was desirable that the proceedings be adjourned, and gave directions to assist Mr Byrnes and Ms Kaiti to have access to the Tribunal file. The Appeal Panel was also concerned that Ms Kaiti had not as yet been able to arrange to meet Z, and inform us as to any views Z might hold, and what weight should be given to them. In addition, we made directions for the filing of an amended notice of appeal. The appellant filed an amended notice of appeal on 21 June, accompanied by submissions.
6. In the amended notice of appeal, nine points were set out as 'grounds of appeal' raising questions of law. In addition, the appellant applied for leave to have the grounds considered as 'other grounds' should it be found that any of the grounds of appeal are not errors of law, but rather questions of fact and / or discretion. The appellant's written submissions developed these points.
7. At the resumed hearing on 25 August 2016, Ms Kaiti advised that she had not visited Z. She strongly supported the appellant's submissions in relation to errors made by the Tribunal. She supported the desirability of the decision being set aside, and the matter either being remitted for reconsideration or a new decision being made by the Appeal Panel appointing T as financial manager. The NSWTG did not participate in the proceedings.

Questions of Law

1. At the first appeal hearing, the Appeal Panel expressed some doubt as to whether there was anything unusual or unorthodox about the approach taken by the Tribunal in reaching the conclusion that the NSWTG be preferred to T as financial manager.
2. Those interchanges provide the background to the appellant's opening written and oral submissions in which the point is made that there was no opponent at the appeal hearing to T being appointed financial manager. The submissions noted that U, the original applicant, had indicated she was not opposed to T being appointed (the email of 21 March, previously mentioned), that the separate representative, Ms Kaiti, supported that outcome, and that at the hearing below the NSWTG representative (Mr Brydson) had supported such an appointment, and finally N, Z's other son, supported the appointment. The submission went on to say, deriving it would seem from the interchanges that occurred at the first day of hearing, that: '[T]his Tribunal should not adopt the role of the Respondent to the Appeal nor treat such Appellant [sic] as an adversary.'
3. The submission misunderstands the nature of this jurisdiction.
4. The jurisdiction is protective in nature. The paramount consideration is the best interests of the protected person. The Tribunal conducts an inquiry into the need or otherwise of the person the subject of the application to be placed under protection, and the extent of the orders that should be made in that regard. If the Tribunal is satisfied that there is a need for a protective order, having applied the criteria to which we alluded earlier in these reasons, the Tribunal will examine the options for appointment. It will first consider the suitability of any private person, such as a family member, who is proposed as a guardian or as a financial manager. If not suitable, the Tribunal will then proceed to appoint the statutory functionary, the Public Guardian in the case of guardianship and the NSWTG in the case of financial management.
5. The fact that a proposed appointment of a private person as guardian or financial manager has wide support may or may not be significant, depending on the circumstances of the case. A mere poll may tell little about the suitability of the person proposed. On the other hand, it is possible those who support the appointment can give detailed testimonials going to such matters as the candidate's experience and ability in financial matters, the trust that the protected person has in that person, and the candidate's acceptability to other members of the family and people interested in the welfare of the protected person. In this case the Tribunal had no detailed information before it as to T's capacity to carry out the functions of a financial manager, other than what he said to the Tribunal about that. It had evidence of some conflict within the family, and evidence of Z's personality difficulties, and her recent record of hostility to any changes in her circumstances, behaviours connected with her disability.
6. It is plain from the Tribunal's reasons that it had specific reservations about the suitability for appointment of T based on the following factors: the likely need in the near term for steps being taken to sell the house and consolidate Z's funds, the difficulty that may arise in dealing with Z because of her mental condition, in particular her tendency to paranoid reactions and the potential for conflict within the family and the fact that he lived a long distance away from his mother. It had not seen these as standing in the way of him being suitable for appointment as guardian, but reached a different view so far as appointment as financial manager was concerned. They are different roles with different responsibilities.
7. In our view the Tribunal engaged in the discretionary task committed to it in a considered and balanced way.
8. We do not agree with the submissions on behalf of the appellant and from Ms Kaiti that the Tribunal's reasons were founded on a wrong premise, i.e. its statement that '[T] said he only wanted to be appointed as financial manager if he was jointly appointed with his brother.' The reasons which follow on from that statement must be read fairly. It is clear, we consider, that the Tribunal went on to consider the option of T being appointed alone. The discussion in the remainder of [48] and [49] involves a consideration of T's individual suitability for appointment. The Tribunal did not restrict its consideration in the way suggested, that is to rule T out because of his original proposal that he and N be joint financial managers.
9. The grounds of appeal also contend that the Tribunal failed to apply the law in this jurisdiction which requires it to look first to the family for a financial manager and only after finding no suitable person, then to appoint the statutory functionary, the NSW Trustee. The text of s 25M has been set out earlier in these reasons. It will be seen that it gives the Tribunal a choice to: (a) appoint a suitable person as manager of that estate, or (b) commit the management of that estate to the NSW Trustee.
10. Z drew attention to Kirby P's statement in Holt that the community's ordinary custom of having family members care for each other in times of need and difficulty should inform the making of protective orders. Kirby P said at 238-239: It will not have escaped attention that when parliament enacted s 22 of the Act [we interpolate the predecessor to s 25M] it provided first that a "suitable person" should be appointed as manager of the estate of a protected person and only secondly that the management of that estate should be committed to the Protective Commissioner. This is a sensible hierarchy of choices. In many estates of modest size it will be appropriate where there is no risk of conflict of interest and duty, and where a relationship of love or affection is established, to reflect in the statutory appointment the form of management which for millennia, in primitive societies as in civilised communities, has been followed when a family member is found to be incapable of managing his or her affairs. It is normal then for the family to step in. The courts conserved their intervention to cases where there is no family or where no family are willing to act or for special reasons of incompetence or conflict of interest it is unsuitable to appoint a family member. There is a danger in the administration of the Act of overlooking not only this natural order of things but the way in which parliament has reflected it in the terms of s 22 of the Act.
11. It is usual for the Tribunal to look first at whether there is a private person who can fulfil the role of manager. This is in keeping with the shift in approach that has taken place over the last 25 years. Lindsay J gave an account of that shift in M v M [2013] NSWSC 1495: 25. Before, and perhaps in the immediate aftermath of, Holt v Protective Commissioner (1993) 31 NSWLR 227 the jurisdiction of the Court, in the appointment or replacement of a manager, was exercised in a manner that favoured the appointment of a public manager (the Protective Commissioner) over the appointment of a private one other than a statutory trustee company. 26. New South Wales was not unique in this. Other Australian courts also manifested a predisposition towards public entities: Morris v Zanki (1997) 18 WAR 260 at 284-286; Jones v Moylan (1997) 18 WAR 492 at 496-497, 501 and 509-510. 27. In New South Wales it can be seen, for example, in the advocacy of the Protective Commissioner's services in BE Porter and MB Robinson, Protected Persons and Their Property in New South Wales (1987) at pp 29-30. The authors were, respectively, the Protective Commissioner and a legal officer in the Protective Division of the Supreme Court. 28. It can also be seen in many of the seminal judgments of the then Protective Judge, Powell J. 29. However, the paradigm shifted towards the turn of the century. In Re L [2000] NSWSC 271 at [7] Young J recorded that "... if a responsible member of [an] incapable person's family, with the consent of other members of the family and particularly when joined with a person with financial expertise, seeks to be the manager [of a protected estate], such an order will, at least at present, usually be made almost as of course". Holt v Protective Commissioner was instrumental in that shift. 30. As Kirby P noted in Holt v Protective Commissioner at 31 NSWLR 237G-238A, the statutory power of the Court to appoint a manager (then found in ss 13 and 22 of the Protected Estates Act 1983 NSW, now found in s 41 of the NSW Trustee and Guardian Act) includes, by virtue of s 47 of the Interpretation Act 1987 NSW, a power to remove a manager which is expressed "in the widest possible terms". It is supplemented by the powers of the Court in exercise of its inherent jurisdiction: 31 NSWLR at 241B.
12. In this case the Tribunal gave careful consideration to T's suitability for appointment. It also took note of some of the advantages that an external, statutory manager provides in cases of the present type, a protected person affected by paranoia, and a history of being difficult around giving consents for changing in treatment and accommodation (set out earlier in the reasons in connection with the guardianship order), and family tensions (the estrangement between N and his mother for some years, the antagonism held by N and T towards N's son).
13. It was not an error to engage with the comparison. In Holt, Kirby P did himself highlight a number of the advantages that went with the appointment of the Protective Commissioner. They include the 'manifest independence and a dispassionate and neutral approach' (as it was put by Young J in Application of O'Hara; Re M [1999] NSWSC 209 at [18]). Holt, as Lindsay J explained in M v M, was speaking to a time when the statutory manager was routinely chosen over a private manager. The Tribunal did not proceed in that way.
14. The grounds of appeal contended that the Tribunal 'wrongly found' that T was opposed to the sale of his mother's home. The appellant argued that it should have been put to him directly whether he held that view, which he denied. The submission was that there was no evidence that the appellant would not sell the house if it were required.
15. In our view, little turns on this point. The Tribunal had the opportunity of seeing and hearing from all the interested persons. It formed a view as to T's attitude as it discerned it at the time of the hearing. It was one of a variety of factors that influenced its decision. There are a number of similar challenges to other aspects of the reasoning.
16. The Tribunal was engaged in the task of making an overall appraisal of the material before it. It was engaged in an inquiry.
17. The grounds of appeal went on to criticise the Tribunal for suggesting that the demands of financial management were relatively complicated, and argued that they were relatively simple (sale of a house, basically, following by payment of the RAD). These are judgments of degree. No error of law is revealed.
18. Similarly it does not follow that because a person is found to be suitable as a guardian that he or she is suitable as a financial manager. The reasons, read as a whole, indicate that the Tribunal gave considerable weight to the maintaining of family relationships in its decision to appoint T as guardian, but it saw those relationships as threatened by the appointment of a family member as financial manager, having regard, in particular, to the nature of the mother's mental illness. This perspective is not an unusual one. It sometimes leads, as here, to a division of guardianship and financial manager functions as between a family member on the one hand, and the statutory functionary on the other hand.
19. In our view, no errors of law are identified by the grounds of appeal.

Leave to consider Other Grounds

1. We are not inclined to revisit these points, and some others, by granting leave to extend the appeal to 'other grounds'. In our view, the Tribunal dealt appropriately with the case as it presented itself in January 2016.
2. A grant of leave would open up the case to review on the merits. That should be resisted in appeals in a jurisdiction of the present kind where there is a practice of reviewing orders on a regular basis. Our attention was not drawn to any considerations that made it pressing for the order to be revisited ahead of the regular review, for example, a significant change of circumstances, maladministration or the like. Were there material of that kind, an Appeal Panel would be very likely to remit the matter for reconsideration by the primary Tribunal rather than undertaking that task itself.
3. It is now several months since the decision in issue was made. The order was limited to a period of 12 months. It will come up for review in January 2017. The appellant will have the opportunity then to make submissions and present evidence as to why the present order is no longer appropriate. One of the points that the decision in Holt underlined was that the public, statutory manager does not have any ownership of an appointment. The Tribunal is better placed than the Appeal Panel to undertake a full review of the merits of the order in dispute, and that will occur within a few months.

Order

1. Leave to extend appeal to other grounds refused.
2. Appeal 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: 20 September 2016