ZDH v ZDI

NCAT Appeal Panel|2017-03-14

Background

ZDH has appealed a decision of the Civil and Administrative Tribunal made in the Guardianship Division on 8 November 2016 (which we will refer to as 'the Decision'). The effect of the Decision was to commit the management of the estate of ZDJ to the New South Wales Trustee and Guardian. The appellant is one of the sons of ZDJ. The first respondent (ZDI) is the former manager of the village in which ZDJ resides. ZDL is the current manager of the village. For ease of understanding we will refer to the parties as follows: 1. ZDH (the appellant and a son of ZDJ) will be referred to as 'the appellant'; 2. ZDJ, the subject person will be referred to as 'ZDJ'; 3. ZDI (the former manager of the village in which ZDJ resides and first respondent) will be referred to as 'the former manager'; 4. The third respondent is another son of ZDJ and will be referred to as 'ZDK'; 5. The fourth respondent is the NSW Trustee and Guardian and will be referred to as 'the NSW Trustee and Guardian'; 6. ZDL, the fifth respondent is the current manager of the village in which ZDJ resides and we will refer to ZDL as the 'current manager'.

Representation

At the hearing of the appeal, both the appellant and the current manager sought leave to be represented by their legal advisors. Leave was granted.

Parties

The current manager, through her counsel, made an application to be joined to the appeal. We made an order that the current manager be joined as an additional respondent to the appeal (namely ZDL).
At the hearing we also raised the question of whether ZDJ ought to have her interests advocated for by a separate representative or a guardian ad litem (GAL). The evidence before the Tribunal below, which was not in dispute before us, was that ZDJ has advanced dementia and is unable to participate in the appeal. Counsel for the current manager submitted that his role was essentially that of a contradictor. The appellant's representative did not express a view. The NSW Trustee and Guardian, who is the appointed manager for ZDJ, did not take part in the hearing. We were satisfied that the interests of ZDJ are appropriately considered through the submissions put forward by counsel for the current manager and the solicitor for the appellant and did not appoint a separate representative or a GAL

Fresh Evidence

Counsel for the current manager sought to rely upon a number of documents, copies of which were attached to his submissions. They include a title search for a property in regional NSW (the "first property"), a search concerning an application for probate, a real estate agents advertisement for the proposed sale of the first property, a title search in respect of a property contained in folio 103/XXXXX, a certificate of title volume Vol XXX Folder XXX and a transfer by mortgagee under a power of sale. There was no objection to the tender of these documents, which we note were not before the Tribunal at first instance.
Accordingly, we gave leave for counsel to tender the above documents.

The Decision

The Decision may be relevantly summarised in these terms: 1. ZDJ is an 86-year-old woman with advanced dementia and lives in the village managed by the current manager. Evidence was provided that ZDJ had appointed her two sons (one being the appellant) her joint attorneys under an enduring power of attorney dated 17 August 2004; 2. The former manager lodged an application with the Tribunal for the appointment of a financial manager for ZDJ; 3. ZDJ was found to be incapable of managing her affairs; 4. The appellant gave evidence that the house previously lived in by ZDJ belongs to him because he had exercised an option to purchase the property in 2004; 5. The Tribunal accepted that ZDJ had appointed the appellant and ZDK jointly as her attorneys on 17 August 2004; 6. The Tribunal accepted the evidence of the former manager that there was a need for a financial manager to elect whether ZDJ should pay a refundable lump sum to the village or an extra $35.00 per day. There was also a need to resolve an issue with Centrelink; 7. The Tribunal found that the appointment of the appellant and ZDK as attorneys has not been successful in effectively managing ZDJ's affairs; 8. There was an unresolved issue as to who owns a particular property: ZDJ or the appellant; 9. Because of an apparent discrepancy in evidence concerning ownership of certain real estate, there is a need for a financial manager to ascertain the extent of ZDJ's estate; 10. The appellant has a conflict of interest which precludes his consideration as a candidate for appointment.

Notice of Appeal and Appellant's Submissions

The grounds of appeal contained within the Notice of Appeal were as follows: NCAT failed to give any weight to the wishes of [ZDJ] in that she had executed an enduring power of attorney appointing her sons [the appellant] and [ZDK] as her attorneys the Document was witnessed by a legal practitioner and included clause 2 The tribunal did not give due consideration of the capacity and capability of the sons of [ZDJ] to manager (sic) her affairs The tribunal refused to accept any evidence from the respondent relying upon a procedural matter to dismiss any such consideration. The tribunal erred in not placing sufficient weight on the written wishes of [ZDJ].
During the hearing of the appeal, the appellant's solicitor withdrew the third ground relating to the Tribunal's asserted refusal to accept evidence from the respondent leaving the remaining three grounds.
The appellant has also filed written submissions which may be summarised in these terms: 1. The appellant is a son of ZDJ who has been a widow since June 2015. ZDJ and her late husband were joint tenants of the first property. That property was the subject of a put and call option entered into some years ago with the appellant and the appellant's wife, on the one hand, and ZDJ and her late husband on the other hand. One effect of the put and call option was that the appellant advanced a sum of money to his parents and may exercise an option to purchase the property upon the death of ZDJ; 2. The appellant accepts that a person is required to manage the affairs of ZDJ because she is not capable of managing her own affairs; 3. However, there is no need for a Tribunal order because the appellant and ZDK have been appointed the attorneys of ZDJ and have acted in that role in the best interests of their mother without the need for any Tribunal order; 4. The principal concern with the original application before the Tribunal (which resulted in the order committing the financial management of ZDJ to the NSW Trustee and Guardian) was the payment of costs of ZDJ's accommodation in the village in which she resides. Those costs have been paid; 5. ZDJ has an interest in the first property but that interest is secondary to that of her son's interest (being the appellant) as contained in the deed of the put and call option; and 6. There is no requirement for an order appointing a financial manager, and the appellant and ZDK as the attorneys under an enduring power of attorney are best suited to that role.
At the hearing, Mr Carey submitted that the Tribunal at first instance relied upon the fact that monies due to the village had not been paid as a factor to take into account in considering the need to appoint a financial manager. However, that situation has been rectified and all monies owing to the village have been paid. We note that the Tribunal acknowledged this in its Reasons. Mr Carey also informed the Tribunal that the first property has been listed for sale (consistent with the additional evidence which the current manager obtained leave to tender). If that property is sold and monies due to the appellant repaid, there will still be sufficient funds to cover the affairs and obligations of ZDJ.
During the appeal hearing there was discussion concerning the enduring power of attorney, a copy of which had been included as an attachment to the appellant's submissions. That power of attorney, which was in evidence before the Tribunal below, had not been accepted by the attorneys even though the form had provision for such acceptance to be signed and dated by the attorneys. Furthermore, the certificate under s 19 of the Powers of Attorney Act 1993 (NSW) (PA Act) was dated 7 November 2016, whereas the power of attorney had been dated and apparently signed by ZDJ on 17 August 2004 (some 12 years earlier).
Mr Carey conceded that the power of attorney in its current form was not enforceable but submitted that it was capable of "rectification".
During the hearing Mr Carey informed the Appeal Panel that during an adjournment of the appeal hearing, his client had given him the original of the enduring power of attorney but conceded that that document appears to have been a different document from the one attached to the appellant's submissions and different to that which was before the Tribunal below The enduring power of attorney given to him during the adjournment was, according to Mr Carey, signed by ZDJ and ZDJ's two sons accepted their appointments.
Paragraph 31 of the Decision stated that the "Tribunal is satisfied that [ZDJ] appointed [the appellant] and [ZDK] jointly as her attorneys on 17 August 2004". The Tribunal's Reasons for Decision indicated that it proceeded on the basis that the enduring power of attorney was valid. On this basis, Mr Carey's submission was that it had not been given appropriate weight by the Tribunal in terms of reflecting the wishes of ZDJ to have her affairs managed by the appellant and ZDK. This submission is in substance the same as that contained in the grounds of appeal (which have been outlined above), namely that the Tribunal failed to give weight to the wishes of ZDJ in that she had executed an enduring power of attorney appointing her sons as her attorneys. A related submission was that the Tribunal did not give due consideration to the capacity and capability of the sons to manage the affairs of ZDJ. Mr Carey submitted that the concerns of the Tribunal concerning the non-payment of monies due to operator of ZDJ's place of residence had been addressed.
Mr Carey submitted that if the enduring power of attorney that was in evidence before the Tribunal below was in fact invalid, then the Decision was in error because of the finding made in [31] referred to above.
Mr Carey submitted that the Appeal Panel should order a rehearing of the application.

Reply to Appeal and Current Manager's Submissions

A reply was been filed by the current manager submitting that the Tribunal's order was appropriate. An amended reply was also filed.
The written submissions and the oral submissions of counsel for the current manager were to the following effect: 1. It is necessary for the appellant to establish either an error of law in order for the appeal to be successful or to obtain leave to appeal; 2. A failure to give any weight to a relevant consideration may constitute an error of law. Here, it is clear that the existence of an enduring power of attorney was given appropriate weight: see [31] of the Decision; 3. An Appeal Panel in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 considered the requirements for establishing a question of law giving rise to an appeal as of right. Neither the Notice of Appeal nor the appellant's submissions have identified a question of law; 4. An Appeal Panel in Collins v Urban [2014] NSWCATAP 17 has identified the grounds applicable to the granting of leave to appeal. The appeal does not satisfy these grounds. There is no issue of principle, no matter of public importance and no injustice by reason of an error in relation to a matter central to the issues. The possible error in finding that the power of attorney was valid does not vitiate the Decision; 5. There was evidence that the appellant had sworn an affidavit filed in the Supreme Court for probate purposes in relation to the estate of the late husband of ZDJ, which contained incorrect information. This affidavit was in evidence before the Tribunal below. The affidavit stated that another property in rural NSW ("the second property") belonged in part to the appellant's late father (in relation to which ZDJ is the beneficiary of her late husband's estate) whereas the appellant's evidence to the Tribunal was that it belonged to him (see [37] of the Decision); 6. The appellant did not include in the affidavit lodged with the Supreme Court, reference to the first property but arguably it should have been included; 7. There is a question as to who has authorised the sale of the first property. There is no evidence that the NSW Trustee and Guardian has given authority. The power of attorney is presently suspended; 8. The above matters are important in considering the proper person to manage the affairs of ZDJ; 9. There are some questions as to the efficacy of the power of attorney and the possible existence of another power of attorney but, nevertheless, [31] of the Decision makes it clear that appropriate weight was given to the fact of the appointment of the appellant and ZDK as attorneys for ZDJ; 10. No errors of law have been identified and therefore it is necessary to consider whether leave should be granted. The principles concerning the granting of leave have been established in an appeal decision reported in Collins v Urban; 11. The Decision demonstrates concern which the Tribunal had for how the attorneys had fulfilled their duties. The original application sets out the former manager's concerns for the management of ZDJ's affairs; 12. In the Decision, the Tribunal reveals concern about the fact that an assessment from Centrelink had not been addressed even though the appellant thought the assessment was in error: see [26] of the Decision; 13. Mr Fernon submitted that a second area of concern for the Tribunal at first instance was the fact that the appellant had a conflict of interest; and 14. Leave to appeal should be refused and the appeal dismissed.

Consideration

The Decision is an "internally appealable decision": see Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) ss 4 and 32(4). A party may appeal an internally appealable decision on any question of law or with leave of the Appeal Panel on any other ground: the NCAT Act s 80(2)(b). Section 81 sets out the orders that may be made on an appeal.
We are of the opinion that the appeal should be dismissed. No question of law has been identified and no matter has been established which would justify granting leave to appeal. Our reasons follow.
The appellant did not specifically identify any matter in or concerning the Decision which demonstrates a question of law for our consideration. In Prendergast v Western Murray Irrigation Ltd at [13] to [18], the Appeal Panel gave examples of questions of law. These include:

Whether the Tribunal failed to take into account a relevant consideration which the decision maker was bound to take into account;
Making a finding for which there is no evidence;
Whether there has been a failure to provide adequate reasons;
Whether the Tribunal identified the wrong issue or asked the wrong question;
Whether a wrong principle of law has been applied;
Whether there has been a failure to afford procedural fairness; and
Whether the decision is so unreasonable that no reasonable decision maker could make it.

The Notice of Appeal does not appear to identify any question of law and nor can we identify any question of law arising out of the Decision.
The Notice of Appeal submits that the Tribunal failed to give any weight to the wishes of ZDJ in that she had executed an enduring power of attorney appointing her two sons as her attorneys.
It is clear that the Tribunal, when exercising functions for the purposes of the Guardianship Act 1987 (NSW), including when considering whether it may make a financial management order under s 25G of that Act, is under duty to observe the principles set out in s 4 of the Guardianship Act, giving primacy to the welfare and interests of the protected person as required by s 4(a) (C v W [2015] NSWSC 1774, at [82]-[100]) and taking into consideration the views of the person (s 4(d)). The s 4 principles are a "statutory expression of the purposive character of the Supreme Court's inherent (parens patriae) protective jurisdiction" (C v W, at [90]). Further, the centrality of the principles contained in s 4 of the Guardianship Act is reinforced by sch 6, cl 5(1) of the NCAT Act which provides that, when exercising its "Division functions for the purposes of the Guardianship Act 1987", the Tribunal is under a duty to observe the principles set out in s 4 of the Guardianship Act (see also ZBC v ZBD [2016] NSWCATAP 264, [100]).
However, the Decision is clear in recording that the existence of the power of attorney, and thereby ZDJ's wishes as reflected in her execution of that document, was given consideration. ZDJ's current views could not be sought due to the extent of her cognitive impairment.
If the power of attorney is not currently valid (as may be the case and was conceded by the appellant's solicitor), that factor does not vitiate the Decision. Indeed it would constitute the absence of a factor which had otherwise been considered by the Tribunal as potentially favouring a decision not to appoint NSW Trustee and Guardian as financial manager.
Accordingly, we are of the opinion that the appeal does not raise any question of law.
Insofar as the appeal might be considered as one for which leave to appeal should be granted, we agree with the submissions made by counsel for the current manager that there is no basis for granting leave.
The principles for granting leave to appeal from guardianship proceedings were set out by White J in SAB v SEM [2013] NSWSC 253: [8] Without intending to be exhaustive, the considerations governing a determination as to whether leave should be given will include whether or not a question raised involves a matter of administration or policy which might have general application, whether or not the Tribunal's decision has been arrived at after the Tribunal members have directed themselves properly and fairly on the facts and not gone wrong in law, whether there is 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, and whether the factual error was unreasonably arrived at and clearly mistaken. (See K v K at [14] and Slinko v Guardian Administration Tribunal at [9]-[16].) [9] Underlying these constraints is the need to recognise that Parliament has entrusted to the Tribunal the primary function of making the factual determinations required for a guardianship order, and that the Court should not grant leave to appeal unless the Tribunal has gone about that fact finding process in a way which is so unorthodox as to be likely to produce an unfair result. It is not enough that a judge might consider that he or she would have reached a different conclusion on the facts from the conclusion reached by the Tribunal. [10] The grant or withholding of leave is to be exercised having regard to the general principles in s 4 of the Act, including the principle that the welfare and interests of the person with disabilities is to be given paramount consideration. But that is not to say that the gateway requiring leave to appeal can be emasculated by the Court's too readily engaging in a detailed review of the facts with a view to detecting possible error.
The principles which govern the granting of leave to appeal pursuant to s 80(2)(b) of the CAT Act were set out in Collins v Urban [2014] NSWCATAP 17 at [84]. Those principles may be described in summarised form in these terms: 1. The appellant 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; 2. Ordinarily it is appropriate to grant leave to appeal only in matters that involve questions of public importance or matters of administration of policy or which might have general application, or where there is 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; or 3. A factual error was unreasonably arrived at and clearly mistaken.
We agree with the submissions of counsel for the current manager that the reasoning in the Decision does not reveal any basis for the granting of leave. No issue of principle has been identified, nor a matter of public importance or a matter of administration of policy which might have general application. No injustice which is reasonably clear has been demonstrated. The Tribunal found that the management of the affairs of ZDJ had not been "successful in ensuring that [ZDJ's] financial affairs had been effectively managed" (at [50]). The Tribunal took into account the fact that ZDJ had appointed the appellant and ZDK attorneys under an enduring power of attorney. The Tribunal's approach to the consideration of evidence and its findings of fact do not reveal any error of the kind contemplated in the decision of Collins v Urban.
It follows that the appeal must be dismissed. Orders will be made accordingly.

Orders

The Appeal Panel makes the following orders: 1. ZDL is joined to the appeal as an additional respondent; and 2. Appeal dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 May 2017

Powers of Attorney Act 1993(NSW)

At a glance

Court

Decision date

Source

Judgment (10 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (5)