ZEJ v ZEL

NCAT Appeal Panel|2018-07-26

REASONS FOR DECISION

ZEL is in her late forties, has an intellectual disability and lives in Sydney with her mother and brother, ZEJ. ZEJ appeals from a decision made by the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) to renew the guardianship order made in respect of ZEL. In that decision, after reviewing the guardianship order made by a differently constituted Tribunal in November 2015, the Tribunal made a further guardianship order in respect of ZEL for a period of six months, reappointing the Public Guardian as ZEL's guardian and giving the Public Guardian a services function. ZEJ appeals from that decision, contending that his sister's interests would be better served if he, and not the Public Guardian, acted as his sister's guardian.
In addition, ZEJ appeals against a decision of the Tribunal made on the same day, to adjourn the hearing of the application made by him for review of a financial management order made in 2014, in respect of his sister.
For the reasons that follow, we have decided to dismiss the appeal.

Publication of the names of the parties

The publication or broadcast of the name of any person who is mentioned or is otherwise involved in an "internal appeal" against decisions made by the Guardianship Division of NCAT, is prohibited: s 65(1) of the Civil & Administrative Tribunal Act 2013 (NSW) (NCAT Act). Being an official report of the appeal proceedings, that prohibition does not apply to these reasons for decision: s 65(3) of the NCAT Act. Nonetheless, because of the sensitive nature of the matters raised in these proceedings, we have decided not to publish in these reasons any details that may identify the parties.

Background to the decision under appeal

In May 2014, the Tribunal made a guardianship order appointing the Public Guardian to make decisions about services on behalf of the subject person (the original order). Apparently the trigger for the initiating application which resulted in that order being made was an allegation that the appellant had assaulted his mother and had a history of conflict with his sister's service providers. In November 2015, as required by s 25(2) of the Guardianship Act 1987 (NSW), the Tribunal conducted an end-of-term review of the original order, renewing and varying that order by adding an accommodation function (the November 2015 Guardianship order).
Two years later, after conducting a review, a differently constituted Tribunal renewed the November 2015 Guardianship order for a term of six months, reappointed the Public Guardian and removed the accommodation function conferred under the earlier order. This is the decision under appeal. Written reasons were given for that decision and the adjournment decision (Reasons).

Does the appeal raise a question of law?

The appellant has a right to appeal against the decision to appoint the Public Guardian under appeal as of right on any question of law or, with the leave of the Appeal Panel, on any other ground: s 80(2)(b) of the NCAT Act.
In the notice of appeal, under the heading "grounds of appeal", the appellant wrote: The Public Guardian and financial management do not do anything. They make [my sister] worse.
He went on to write: I'm a brother and a carer of [my sister] since she arrived in Australia in 1996 until her guardianship was taken over by the Public Guardian and the financial management. I should be a guardian of [my sister], not the Public Guardian. I should be manag[ing] [my sister's] finances.
As pointed out by the Public Guardian and the Separate Representative, neither the notice of appeal nor the submissions in support of the appeal expressly raise a question of law. However, in our view, a fair reading of those documents, taken together with the oral submissions made by the appellant, appear to raise the following questions of law: 1. Whether the finding made by the Tribunal that the appellant was unable to make and implement appropriate decisions about service providers was made in the absence of any evidence; and 2. Whether the decision made by the Tribunal to appoint the Public Guardian was "legally unreasonable" in the sense discussed in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (Li).

Ground 1: No evidence

The appellant contends that there was no evidence to support the finding made by the Tribunal that he was "[un]able to make and implement appropriate decisions about services [on behalf of his sister] at this time": Reasons at [26]. This finding was central to the Tribunal's decision to exercise the discretion to make a guardianship order, and its subsequent decision to appoint the Public Guardian as the Subject Person's guardian. In the review hearing, the appellant urged the Tribunal not to renew the 2015 guardianship order or, in the alternative, to appoint him as his sister's guardian.
It is an error of law to make a finding for which there is no evidence: Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 at 418 [90] - [91]; Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 356.
In exercising the discretionary power conferred by s 14 of the Guardianship Act to make or not to make a guardianship order, the Tribunal was required to have regard to, among other things, the practicability of services being provided to the Subject Person without the need for the making of such an order: s 14(2)(b). The Tribunal identified this as the "key issue" in the exercise of the discretion to make or not make a guardianship order.
In the Reasons, the Tribunal considered at [16], [17] the history of the appellant's relationship with service providers: [I] noted that services were in place until the recent breakdown related to NDIS implementation. However, I also noted the history of [ZEJ's] relationship with service providers as spelt out in previous reasons and in the current hearing. [ZEJ] told me that his relationship with service providers in recent times had been very poor including them coming at inappropriate times, forcing services on [ZEL] that she did not need, having workers who did not speak Cantonese and threatening to tell the Public Guardian if [ZEJ] did not do what they said. There were differing versions about when [ZEJ] had informed the Public Guardian that services stopped. However, he said that there had been no point him telling the Public Guardian about workers that he recommended because the Public Guardian would not have been willing to let him use them. Whenever he has talked to the Public Guardian, there has been a huge argument.
The Tribunal decided that, notwithstanding the appellant's strong opposition, a further guardianship order "in relation to services" should be made, reasoning at [20]: In view of the differences that [ZEJ] has had with service providers over time and the strength with which he outlined his grievances against service providers in the hearing, I was not satisfied that it was practicable for services to be provided to [ZEL] without a guardianship order.
Having decided to exercise the power to make a guardianship order, the Tribunal went on to consider whom to appoint as the Subject Person's guardian. It was not open to the Tribunal to appoint the appellant as the Subject Person's guardian unless it was satisfied that he met each of the three criteria listed in s 17(1) of the Guardianship Act: 17 GUARDIANS (1) A person shall not be appointed as the guardian of a person under guardianship unless the Tribunal is satisfied that: (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. (emphasis added)
The Tribunal acknowledged that the appellant had taken a "major role in the care of his sister" and that the Subject Person's GP supported his appointment as guardian. However, the Tribunal concluded at [26]: In view of [ZEJ's] negative history of relationships with service providers including as expressed by himself in the current hearing, I was not satisfied that he was able to make and implement appropriate decisions about services at this time.
It is implicit from the Reasons, that the Tribunal was of the opinion that it was both necessary and desirable that the Subject Person receive external services. The Tribunal had before it material about the appellant's "negative history of relationships with service providers", which as the Tribunal noted in the Reasons at [16], the appellant had confirmed in the course of the review hearing. It was on the basis of that history that the Tribunal concluded that it could not be satisfied that the appellant "was able to make and implement appropriate decisions about services at this time": [26]. That finding was therefore supported by probative evidence and was reasonably open to the Tribunal. The contention that there was "no evidence" for that finding, which formed the basis for the Tribunal's conclusion that it could not be satisfied that the appellant was able to exercise the services functions conferred by the guardianship order, must be rejected.

Ground 2: The decision to appoint the Public Guardian was "legally unreasonable"

An exercise of a discretionary power which lacks "an evident and intelligible justification" can amount to an error of law: Li at [75], [76]. See also, GAR v Attorney General of New South Wales (No 2) [2017] NSWCA 314 at [154]. Similarly, a finding of fact which is "illogical" or "irrational" in that it was not open on the material before the Tribunal, or because there was no logical connection between that material and the inferences or conclusions drawn, might also give rise to a question of law: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [124] - [125].
The appellant argues that the decision to appoint the Public Guardian as his sister's guardian was unreasonable, asserting that he was better placed to undertake the role. He argues that by appointing the Public Guardian, the Tribunal failed to have proper regard to his sister's welfare and interests, his long involvement in her care and the Public Guardian's alleged failure to act when services provided to his sister were discontinued, a few months before the review hearing. Further, he claims that the Tribunal failed to take into account the alleged practice of the Public Guardian of engaging care workers who did not speak Cantonese, the Subject Person's first and only language.
This submission misapprehends the statutory scheme which governs the exercise of the statutory power to appoint a guardian. Having exercised the discretion to make a guardianship order, the Tribunal was required to decide whom to appoint as guardian. Section 15(3) of the Guardianship Act, prevented the Tribunal from appointing the Public Guardian as the guardian of the Subject Person in circumstances in which "such an order can be made appointing some other person as the guardian of the [Subject Person]". Determining whether an order could be made appointing a person other than the Public Guardian as the Subject Person's guardian required the Tribunal to consider whether the appellant satisfied each of the criterion listed in s 17(1) of the Guardianship Act. On the facts as found, namely that the appellant did not satisfy the criterion in s 17(1)(c ) of the Guardianship Act, it was not open to the Tribunal to appoint the appellant as the Subject Person's guardian. Therefore, by the combined operation of ss 15 and 17 of the Guardianship Act, the Tribunal was compelled to appoint the Public Guardian.
The Tribunal had before it evidence of a long history of fractured relationships between the appellant and the persons and organisations who had been providing external services to the Subject Person. That evidence is not disputed by the appellant, rather his focus in the appeal was on the attribution of responsibility for the breakdown in those relationships. On the basis of that history the Tribunal was not satisfied that the appellant would be able to exercise the services function conferred under the guardianship order.
While past conduct can be a predictor of future conduct, it was not inevitable that the poor relationships between the appellant and service providers would continue throughout the term of the 2017 guardianship order. Nor was it inevitable that if the poor relationships continued, the appellant would be unable to exercise the services function conferred. However, in circumstances where the appellant had led no evidence which might satisfy the Tribunal that his history of fractious relationships with service providers was unlikely to continue, or if it did, it was unlikely to interfere with the discharge of the services function, the finding that the appellant was unable to exercise the services function, was one plainly open to the Tribunal. It could not be characterised as "illogical, irrational or unreasonable".
This ground of appeal must be rejected.

Should leave to appeal be granted?

Having concluded that no error of law is established, it is necessary to decide whether leave to appeal should be granted: s 80(2)(b) of the NCAT Act. The Separate Representative and Public Guardian oppose the grant of leave.
In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel noted at [84] that there must be a "sound basis" for granting leave to appeal and an applicant for leave 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: (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, (Citations omitted)
The arguments made by the appellant in support of leave being granted are in effect a restatement of his sense of general dissatisfaction with various decisions taken by the Public Guardian and service providers. They are irrelevant to the decision under appeal and do not provide a proper basis to exercise the power to grant leave to appeal. In any event, as the Public Guardian and Separate Representative point out, the decision under appeal has now been superseded. In June 2018, the Tribunal (again differently constituted) conducted an end-of-term review of the 2017 guardianship order and decided to renew that order for a term of 12 months. Therefore, no useful purpose would be served in granting leave to appeal. Leave is refused.

Should leave to appeal the adjournment decision be granted?

Being an interlocutory decision, an appeal to the Appeal Panel against the adjournment decision requires leave of the Appeal Panel: s 80(2)(a) of the NCAT Act.
At the hearing on 29 November 2017 the Tribunal was required to determine both the end-of-term review of the November 2015 guardianship order and the application for review of the 2014 financial management order. With respect to the latter, the appellant stated that the interests of his sister would be better served if he, not the NSW Trustee and Guardian, was charged with the task of managing her estate.
The Tribunal gave insufficient time as the reason for adjourning the application to review the 2014 financial management order: Reasons at [29]. The appellant did not dispute that, after dealing with the review of the November 2015 guardianship order, the Tribunal had insufficient time to hear the application for review.
There is nothing before us to suggest that the types of considerations referred to in Collins v Urban, which might warrant granting leave to appeal, apply in this case. In addition, we note that the application for review of the 2014 financial management order was determined by a differently constituted Tribunal on 7 August 2018. No useful purpose would be served in granting leave to appeal the adjournment decision, as the substantive application, namely the application to review the 2014 financial management order has now been determined.
Leave to appeal is refused.

Decision 1. No error of law is established. 2. Leave to appeal is refused. 3. 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: 23 October 2018

Administrative Tribunal Act 2013(NSW)

(NSW), Guardianship Act 1987(NSW)

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