ZGB v ZGC

Notice of Appeal and interlocutory matters

1. The appellant filed a Notice of Appeal dated 18 August 2017 which was recorded as having being received by the Tribunal's Registry on 22 August 2017.
2. The appeal was listed for a call over on 14 September 2017. At that call over, the appellant failed to appear and the appeal was dismissed pursuant to s 55(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act).
3. The appellant subsequently requested that her appeal be reinstated. At a hearing before a differently constituted Appeal Panel on 10 October 2017, the appellant's request was granted, that is, the appeal was reinstated pursuant to s 55(2) of the CAT Act.
4. On 31 October 2017, the appellant lodged an amended Notice of Appeal, which was filed together with a document of 138 pages titled "Request to Review a Guardianship (sic) Order". The amended notice and accompanying documents indicate that the appellant challenges the orders made by the Tribunal on 21 July 2017 appointing the Public Guardian as her mother's guardian and seeks orders appointing herself as her mother's guardian in lieu of the Public Guardian. The Notice of Appeal does not seek to challenge subsequent orders made by the Tribunal appointing ZGE and one of the appellant's sisters as ZGC's financial managers.
5. At the same hearing before the Appeal Panel on 10 October 2017 where the appeal was reinstated, the Tribunal ordered that ZGC be represented by a Guardian ad Litem in the proceedings. By correspondence dated 31 October 2017 from the Office of the General Counsel, the Tribunal was advised that Mr Frank Ainsworth would perform this role in the proceedings.
6. Upon the commencement of the hearing before us on 7 December 2017, ZGE advised that he wished to be joined as a party to the proceedings. His position was that he had been appointed, together with his sister, as his mother's financial manager and therefore had an interest in the appeal proceedings. We were satisfied that he should be joined as a party to the appeal proceedings.
7. Also at the commencement of the hearing we raised with the parties the fact that ZGC was not present. The appellant said she would have liked her mother to be present. She said that whilst her mother had difficulty communicating she had a level of understanding. However, it was the appellant's position that the hearing should proceed.
8. ZGE expressed the view that his mother would be unable to understand or participate in the hearing. He noted that a medical certificate had been forwarded to the Tribunal by staff at the nursing home where she resides. The certificate was signed by a general practitioner and dated 6 December 2017 stating: This is to certify that [ZGC] is unfit to attend a guardianship hearing due to a medical condition. She is suffering from Advanced Dementia and would be unable to participate in the hearing and would become increasingly distressed by the hearing
9. The Guardian ad Litem appointed for ZGC, Mr Ainsworth, advised that he had not met with ZGC as he had reviewed the documentation and informed us that he was of the view there was no point in meeting with ZGC given her diagnosis of advanced dementia. His position was that we should proceed to hear the matter in the absence of ZGC.
10. Given the nature of the appeal proceedings and taking into account that there was no opposition to us proceeding in the absence of ZGC, we determined to proceed with the hearing.
11. We note that whilst a party to the appeal, the Public Guardian elected not to take any active role in the proceedings and made no submissions.

Grounds of appeal

1. Under the heading "Grounds of appeal", the appellant stated Please see attached 138 page submission
2. As to the response on the Notice of Appeal to list the orders challenged on the Appeal, the appellant stated: I attach 138 page submission which details orders and why I believe this should not have happened and the ongoing fallout and deterioration of [ZGC].
3. As to the orders sought by the appellant from the Appeal Panel: I should be given Guardianship of [ZGC] as I am Mum's chosen carer for 2 ½ years and my mother was displaced from her home to cover a change of will orchestrated by Mum's POA.
4. Whilst the appellant indicated on the amended Notice of Appeal that she was not seeking leave to appeal, on a section of the Notice which relates to appeals from a Division of the Tribunal other than the Guardianship Division, the appellant stated as follows under the heading "Decision of the Tribunal against the weight of evidence": I turned up with my mother [ZGC] [at the hearing] who I have been caring for for 2 ½ years before my siblings violently evicted her from a happy home care. My video evidence not accepted. The other party focused on the finances and securing Mum as bond to lock down her change of will they orchestrated. The respondents had no evidence. Only defamation and hearsay. Mum and I were shouted out of the room. It was a traumatising set up. They had lawyers. Mum did not because she had no access to her money.
5. It was difficult for us to discern from the remaining stated grounds the precise nature of the appellant's arguments. Much of the 138-page document submitted by the appellant with the amended Notice of Appeal, and subsequent documentation lodged with the Tribunal, was not relevant to the appeal proceedings. Some of the documentation related to matters within the scope of financial management and outside of the appeal. Some related to alleged events since 21 July 2017, the date of the hearing subject of the appeal. Some of it was simply incoherent and on subject matter of no relevance.
6. The voluminous documentation submitted by the appellant could be summarised as providing: the appellant's views on how detrimental residing in the nursing home was for her mother and how she should return to reside with the appellant; negative views in relation to her siblings; and totally unrelated matters.
7. As the appellant was unrepresented, we endeavoured to assist her to define the grounds of her appeal (see Neill v Not [1994] HCA 23, 68 ALJR 509). This within itself was challenging. What we believe we did manage to clarify was that the appellant's challenge was solely on the issue of who was appointed as her mother's guardian. As the original applicant seeking a guardianship order for her mother, she did not take issue with the Tribunal concluding that her mother was a person in need of a guardian and that the Tribunal correctly exercised the discretion to appoint a guardian pursuant to s 14 of the Guardianship Act 1987 (NSW). Within these parameters, we understood her appeal grounds to be as follows: 1. The conduct of the hearing was procedurally unfair to the appellant (Ground 1) 2. The decision to appoint the Public Guardian as ZGC's guardian was against the weight of the evidence (Ground 2)
8. Apart from the appellant's claim that she was not afforded an opportunity to be heard, an allegation of a denial of procedural fairness, we were unable to identify any other potential questions of law from the appellant's documentation or oral submissions (John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, [13] to [18]).

Reply to the Appeal

1. On the day of the hearing ZGE tendered two letters to us. The first was titled a reply to the appeal, stated to be on behalf of ZGD, ZGE and two of the appellants sisters, and was dated 15 November 2017. The letter stated as follows: 1. [ZGB] suffers from severe and untreated mental illness. Her symptoms include a delusional belief system and extreme difficulty in regulating her emotions. We attach a recent email to [Ms KYL] as evidence of the continuing nature of her symptoms. [ZGB] needs care. She is not in a position to care for others. 2. [ZGB]'s hostility to the medical profession, along with her state of denial about the degenerative nature of Alzheimer's, would render [ZGC] at particular risk should she take on the role of carer. 3. [the nursing home facility] is providing good care for [ZGC]. Previously, her isolation from other residents and the limited access staff had to [ZGC] meant that she was subject to the full force of [ZGB]'s agitation. However, Mum has become a lot calmer since [ZGB]'s reduced access and on occasions appears to enjoy the presence of other residents. 4. The anxiety of [ZGD] ([ZGC]'s husband), about his wife's welfare has been considerably relieved since [the nursing home facility] have taken steps to increase their access. [ZGD] is very happy with the level of care that his wife is receiving.
2. The second letter was authored by ZGD, dated 6 December 2018, and stated, in part: To the parties involved in the December 7 Hearing concerning [ZGC]: To my great disappointment I find that yet again my daughter [ZGB] is attempting to gain guardianship and the role of financial manager over my wife, [ZGC]. I need to state at the outset that I love all my children very much, including [ZGB], and I am concerned for her health and happiness. As an expression of my love for my daughter, who has suffered extended periods of homelessness in her life, I have organised and paid for her current accommodation. [ZGB] does not own the property where she is currently residing but I do wish her to have life tenancy at [private address], if she adjusts her current behaviour. The notion that [ZGB] would take my wife to live in the [private address] accommodation is entirely against my wishes and I refuse to finance a situation that will compromise the health and safety of [ZGC] and bring me much grief. My wife and I always planned that we would retire together in the same facility. If [ZGC] were of sound mind, the idea that we would be living separately would be repugnant to her. Just as importantly, I have full faith in the commitment of the staff at [the nursing home facility] to the care of my wife. … I wish to reiterate: I love my daughter [ZGB] very much- she is dear to my heart- but I find her persistent efforts to remove my wife from [the nursing home facility] distressing. I will certainly not be financing her continued accommodation at [private address], should the court grant her guardianship or the role of financial manager for [ZGC].
3. The Guardian ad Litem did not provide any written submissions to us.

Scope and nature of appeal

1. A party's right to appeal against decisions and orders of the present kind is restricted to 'questions of law'. It may be extended to 'other grounds' with the leave of the Appeal Panel. See the CAT Act, s 80(2)(b).
2. There are time limits within which a Notice of Appeal must be filed.
3. We were satisfied that the original Notice of Appeal in this matter was filed within the requisite time period.

Denial of procedural fairness (Ground 1)

1. A denial of procedural fairness is a question of law: Italiano v Carbone [2005] NSWCA 177; Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 at [8]; John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13(4)].
2. Accordingly, if a denial of procedural fairness is established, the appellant has a right to appeal and leave to appeal is not required (CAT Act, s 80(2) (a)).
3. Mindful of the limitations of the amended Notice of Appeal and the documentation submitted by the Appellant in advancing her case we endeavoured to assist the appellant to explain in her own words why she believed the hearing held on 21 July 2017 was procedurally unfair to her.
4. The appellant informed us that the hearing was procedurally unfair as: she did not get a fair go in the hearing; that there were so many attacks upon her by others that she did not get an opportunity to give the evidence that she wanted to; that there was an imbalance in the proceedings as other parties were legally represented; and she was not prepared for the hearing.

Consideration

1. Section 38(2) of the CAT Act states: The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
2. Section 38(5)(c) of the CAT Act states: The Tribunal is to 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.
3. The obligation of the Tribunal to accord procedural fairness in relation to Guardianship Division proceedings is summarized in BTD v NSW Trustee and Guardian [2015] NSWCATAP 87 (at [14]-[15]) as follows: 14 The Guardianship Division is required to comply with the rules of procedural fairness, which are also known as the rules of natural justice: NCAT Act, s 38(2). Those rules require that a person be afforded a fair and unbiased hearing before decisions are taken which affect them: Aronson, Dyer and Groves, Judicial Review of Administrative Action, (5th ed 2013 LawBook Co) at 397. In particular the hearing rule, which is an element of procedural fairness, requires that a decision-maker hear a person before making a decision affecting their interests. McHugh J spoke generally of this rule in Re Refugee Tribunal; ex parte Aala [2000] HCA 57; (2000) 75 ALJR 52 at 73: … One of the fundamental rules of the fair hearing doctrine is that a decision-maker should not make an adverse finding relevant to a person's rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided. It is a corollary of the warning rule that a person who might be affected by the finding should also be given the opportunity to adduce evidence or make submissions rebutting the potential adverse finding (Mahon v Air New Zealand Ltd [1983] UKPC 29; [1984] AC 808 at 820-821.) 15 The content of the hearing rule must be "appropriate and adapted to the circumstances of the particular case": Kioa v West [1985] HCA 81; (1985) 159 CLR 550 per Mason J at 585. The Guardianship Division's jurisdiction is a protective one. One of its primary aims is to protect vulnerable people from neglect, abuse and exploitation: The Act 1987 (NSW), s 4(g). But that is not its only obligation. The Guardianship Division of the Tribunal is also obliged to ensure that people who are parties to applications receive a fair hearing from an impartial decision-maker. The Tribunal is obliged to disclose to parties who have an interest in the proceedings, the substance of any adverse or prejudicial information and give them a reasonable opportunity to respond: KV v Protective & Ors; KW & Ors v KV & Ors (No.2) [2004] NSWADTAP 48.
4. In determining whether the appellant was denied procedural fairness, we had to consider whether she received a "fair hearing from an impartial decision maker". We have concluded that she did receive such a hearing.
5. The appellant failed to put before us any meaningful submissions as to how she was not afforded procedural fairness by the Tribunal at the hearing conducted on 21 July 2017.
6. She alleged that she was at a disadvantage as she was not represented. That there was an imbalance. She did not provide us with any tangible argument as to how this alleged imbalance resulted in the hearing being procedurally unfair. The appellant had equal opportunity to seek the leave of the Tribunal to be represented if she wished to do so. A party to proceedings is not denied procedural fairness merely because they do not have legal representation (Konnings v Commonwealth Bank of Australia [2016] WASCA 122 at [12]).
7. The appellant further submitted that because of the manner in which the Tribunal conducted the hearing, specifically allowing other participants to "attack" her, she was not permitted to present the evidence to the Tribunal that she had wished to. We note that at a call over on 10 October 2017, a direction was made that the appellant was to give to the Tribunal and the respondents by 31 October 2017 "the sound recording of the hearing at first instance, if what happened at the hearing is being relied on and a typed copy of the relevant parts" (Direction 4(c)).
8. The appellant did not provide a transcript of the proceedings below or an audio recording of those proceedings. She did not put to us what evidence she had in her possession as of 21 July 2017, or submissions she would have put before the Tribunal if she had not been denied the opportunity, as she alleged.
9. The appellant alleged that she was not ready for the hearing and accordingly the hearing was unfair. We note the appellant was the applicant in the proceedings, not a respondent. There is no record that she requested an adjournment of the hearing the subject of this appeal nor did she assert before us that she made such a request.
10. There was nothing before us, other than the appellant's unsupported allegations, that the manner in which the Tribunal conducted the hearing below prevented her from presenting her case and that she was denied a fair hearing.
11. The ground of appeal relating to a denial of procedural fairness is not established.

Other grounds of appeal

1. The appellant is entitled to appeal on grounds other than a question of law but must first obtain the Tribunal's permission or leave (CAT Act, s 80(2)(b)).
2. The principles which govern the granting of leave to appeal pursuant to s 80(2)(b) of the CAT Act are set out in Collins v Urban [2014] NSWCATAP 17 at [84]. The particular considerations relevant to the granting of leave in a protective jurisdiction are explained in a number of decisions (P v NSW Trustee and Guardian [2015] NSWSC 579, [190]-[198]; F v NSW Trustee and Guardian [2017] NSWSC 1319, [41]; SAB v SEM [2013] NSWSC 253, ([8]-[10]).
3. In SAB v SEM [2013] NSWSC 253, White J considered the principles which applied to an appeal to the Supreme Court from a decision of the then NSW Guardianship Tribunal: 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.
4. In C v W [2015] NSWSC 1774, when discussing the principles relating to the granting of leave by the Court under cl 14(1)(b) of Sch 6 to the CAT Act, Lindsay J (at [44]-[46]) stated, relevantly, that: 44 Secondly, if leave is to be granted pursuant to clause 14(1)(b) for an appeal on a ground other than a question of law, the Court generally needs to be satisfied that there is a question of principle or policy, or a manifest error in the decision or decision-making process under review, which merits a grant of leave: Collins v Urban [2014] NSWCATAP 17 at [82]-[84], qualified, in cases involving an exercise of the Court's protective jurisdiction, by observations made in P v NSW Trustee and Guardian [2015] NSWSC 579 at [191].

Was the decision to appoint the Public Guardian as ZGC's guardian against the weight of the evidence? (Ground 2)

1. In the 138-page document that the appellant lodged with her amended Notice of Appeal was the following submission (page 2): I believe that the Tribunal made a tragic mistake when giving guardianship to the Public Guardian and making mum a ward of the State when she had a close and chosen carer in her devoted daughter, that every one of the respondents was determined to erase because they wanted to take advantage to her estate. Objections to my guardianship were based on outright lies, defamation and hearsay that described me as incapable, incompetent and not well enough to look after the affairs of my mother [ZGC].
2. After clarifying with the appellant our understanding of the grounds of her appeal, we invited her to address us further on this point. She submitted to us that the Tribunal should have given more weight to her role as her mother's carer. She was of the view that her siblings had told lies about her and the Tribunal relied on those lies.

Consideration

1. It is not necessary for a decision maker to refer in detail to all evidence and indicate which of it is accepted or rejected. Rather, it is only necessary to record the evidence and findings thereon which are critical to an issue in a case (Mifsud v Campbell (1991) 21 NSWLR 725, 728 (Samuels JA, Clarke JA, and Hope AJA concurring).
2. The weight to be given to evidence is a question of fact. As Mason J explained in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1996) 162 CLR 24; [1986] HCA 40 at [40]: It is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power.
3. We do not agree with the proposition put to us by the appellant that the decision of the Tribunal to appoint the Public Guardian as her mother's guardian rather than the appellant was against the weight of the evidence.
4. The Tribunal's reasoning as replicated in these reasons at [11] explains that the evidence available permitted them to conclude that the appellant could not adequately exercise the functions of the order. The Tribunal formed the same conclusion in relation to the appellant's siblings who also sought appointment. To use the language of Justice Windeyer in W v G [2003] NSWSC 1170 at [25], the Tribunal concluded that an appointment of those who proposed themselves would not result in the policy considerations and principles set in the Guardianship Act being given effect.
5. The Tribunal concluded that there was a need for a guardian to be appointed for ZGC to make decisions on her behalf about, amongst other things, where she resides (accommodation function) and what access she has to others and the conditions of such access (access function).
6. Having concluded that such functions of guardianship were required, the Tribunal's role was to then assess whether those seeking appointment would be able to make substitute decisions for all of the functions of appointment, including accommodation and access, in accordance with the duty prescribed in s 4 of the Guardianship Act.
7. It is evident that the Tribunal concluded that none of the children of ZGC seeking appointment could currently perform the role as their mother's guardian consistent with the duties imposed by s 4 of the Guardianship Act such as ensuring ZGC's welfare and interests were given paramount consideration whilst recognising the importance of preserving family relationships.
8. Some of the evidence that is recorded in the Tribunal's reasons that supported their conclusions include: 25 The Tribunal gleans the following principal issues arising out of this evidence: (a) [ZGB] is strongly critical of the actions of her siblings in removing their mother from the previous satisfactory arrangements for her care. Her father [ZGD] had promised that she ([ZGB]) could reside in a place in [private address], and this would have been an entirely suitable place for her to care for [ZGC], with the assistance of paid carers. … (b) [ZGB] still believes this is the better option for her mother compared with living at [the nursing home facility], and that is why she removed her mother at the end of June and does not intend to return her there. She is also highly critical of the care her mother was receiving at [the nursing home facility], … (c) [ZGE] and his other siblings are of the view that [ZGB] has difficulties caring for herself, and cannot adequately care for their mother. They believe she was receiving optimal care at [the nursing home facility] and they wish her to return there. They deny [ZGB]'s claim that [ZGC] is being traumatised at [the nursing home facility], believing instead that she is projecting her own trauma on their mother. … … (e) [Ms Z] shares the view that [ZGB] is medically unwell and is concerned about what that means for the care of [ZGC]. [ZGC] has complex care needs, and her removal has caused significant concern for her wellbeing … … 27 The Tribunal raised these issues with [ZGD] at the hearing. He confirmed that he wished [Ms QZQ] and [ZGE] to have principal responsibility for his wife. He also stated that [ZGC] should receive care in [the nursing home facility] where she receives professional care. Mr Marsh confirmed that this was in accordance with [ZGD]'s most recent instructions to him.
9. We are satisfied that there was sufficient evidence before the Tribunal to justify the conclusion reached in appointing the Public Guardian as ZGC's guardian. It was certainly a conclusion that was open to the Tribunal when assessing each of the possible appointees' ability to perform the role in accordance with the duty imposed in s 4 of the Guardianship Act.
10. Accordingly, we conclude that there was no question of principle or policy raised, or manifest error in the decision or decision making process under review, which merits a grant of leave (C v W [2015] NSWSC 1774, [44]; Collins v Urban [2014] NSWCATAP 17, [82]-[84]).
11. This ground of appeal is not established.

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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: 06 March 2018