ZJF v ZJG

NCAT Appeal Panel|2018-11-07

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 and 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.
Accordingly, in this appeal, the parties have been assigned pseudonyms as follows:

ZJF - Appellant and an appointed guardian and attorney of ZJG;
ZJG - the person who is the subject of the applications;
ZJH - the other jointly and severally appointed attorney of ZJG; and
ZJI - the applicant in the proceedings at first instance.

Does the appeal raise a question of law?

A party to proceedings of this nature may appeal, as of right, on a question of law. Otherwise, leave to appeal is required: s 80(2)(b) of the NCAT Act.
The notice of appeal did not identify defined grounds of appeal, other than by asserting that: 1. The Tribunal erred in law on important issues; and 2. The Tribunal erred in its assessment of some important facts.
The notice of appeal then referred to an addendum document, which was said to provide more information as to the grounds of appeal. It was, however, more in the nature of a wide ranging commentary on various paragraphs of the decision, later expanded upon in another such document by the Appellant.
Notwithstanding the Appellant's legal training, and ZJI's observation in her reply that the appeal did not identify grounds which were clearly issues of law, we attempted at some length at the hearing to distil from the material ZJF's grounds of appeal and to separate those grounds into questions of law and fact: (Neill v Not [1994] HCA 23).
ZJF agreed that the grounds outlined below constituted his grounds of appeal.
For completeness, we record that ZJH did not seek to participate in the appeal. Whilst ZJG participated in the proceedings at first instance, we accepted evidence that he was not able to participate in the appeal, due to the progressive nature of his diagnosed dementia. The Public Guardian and the NSW Trustee and Guardian also elected not to participate in the appeal.

Questions of law identified by the Appellant

ZJF identified two issues, which he said constituted errors of law, as follows: 1. That the Tribunal erred in finding that ZJF had an obligation to ensure that ZJG was assessed by Centrelink in relation to the daily rate for the Bupa facility; and 2. That the Tribunal erred in finding that ZJF "intermingled" ZJG's superannuation monies with monies in ZJG's personal account.
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, may give rise to a question of law: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [124]-[125]; [2010] HCA 16.
Similarly, it is an error of law to make a finding for which there is no evidence: Kostas v HIA Insurance Services Pty Ltd 241 CLR 390 at [90]-[91]; [2010] HCA 32, Australian Broadcasting Tribunal v Bond 170 CLR 321 at 356; [1990] HCA 33.
We must first consider, though, whether these findings were made by the Tribunal, and, if so, in a way which had some consequence in its reasoning process.

Ground 1 - That the Tribunal erred in finding that ZJF had an obligation to ensure that ZJG was assessed by Centrelink in relation to the daily rate for the Bupa facility.

This ground relates, in brief, to a dispute between Bupa and ZJF regarding ZJG's contract with the aged care facility. It is apparent from the reasons that ZJF, as attorney, had amended the contract submitted by Bupa and signed the amended version, before it was signed on Bupa's behalf. ZJF's reasoning is that, having accepted the amendments, Bupa may not require ZJG to submit to an assessment of a daily rate and that he may, rather, continue to pay a daily rate on ZJG's behalf that he asserts is in accordance with the contract.
There are several paragraphs of the Tribunal's reasons at first instance which raised ZJF's concern in relation to this issue.
The Tribunal recorded, relevantly: [20] The applicant's main concerns were summarised as follows: (4) The amendments to the residential care agreement were not agreed to by Bupa. [ZJF] was acting on a false belief that the means tested fee was fixed at $35.88 per day in accordance with the fee estimator. [ZJF] had refused to lodge the Centrelink assessment for the means tested fee in accordance with the aged care legislation and as such the Department of Human Services had issued the highest amount that was $244.97 per day as per the department's letter dated 18 November 2016. [ZJG]'s fees were in arrears in excess of $45,163.89. … [71] [ZJF]'s evidence established the following: (3) [ZJF] had allowed the ongoing dispute with Bupa to remain unresolved which was incurring considerable arrears and interest (DAP) for [ZJG]. He had received correspondence from the Department of Human Services but had not responded. [ZJF] had rung the department on one occasion and was asked about the terms of contract with the nursing home. He states he was told he could rely on his agreement with the nursing home and not provide an assets assessment. and [73] The Tribunal did not have to determine whether there was any merit in [ZJF]'s argument that his unilateral changes to the residential aged care agreement with Bupa were enforceable and prevented Bupa charging means tested fees or increasing charges for daily care fees. [ZJF]'s submissions and evidence showed a complete lack of understanding of the relevant legislation governing residential care placement and that at no time did [ZJF] make enquiries or seek expert advice at the time of entering the agreement. The fee estimator on which he relied is clearly marked "the tools on this website are provided as a guide for your general information only". [ZJF] had sought counsel's opinion on the enforceability of the contract after the first hearing, which he tendered on 26 April 2018.
The first of these paragraphs is found in the reasons under the heading "Overview of the evidence" and simply recorded the position of one party to the proceeding.
In the second paragraph, while the Tribunal does use the words "which was incurring considerable arrears and interest (DAP) for [ZJG]", it goes on to reflect, accurately, ZJF's position in relation to this issue. It would be preferable if the Tribunal had added the word "allegedly" to make it apparent no finding was intended, but for the reasons set out below in relation to the third paragraph, we are satisfied that this was implied.
In the third paragraph, the Tribunal makes it plain that it avoided the error ZJF now contends it made. That is, the Tribunal did not find that ZJF had an obligation to ensure that ZJG was assessed by Centrelink in relation to a daily rate for the Bupa facility. ZJF says that if the issue was recorded by the Tribunal it must have been influential in the decision. We do not agree. Upon a proper reading of the decision in the context in which it was given and in the order this issue was referred to by the Tribunal as shown above, the Tribunal makes it clear that it made no determination on this area of dispute between the parties.
This ground has no merit.

Ground 2 - That the Tribunal erred in finding that ZJF "intermingled" ZJG's superannuation monies with monies in ZJG's personal account.

There is no dispute that ZJF withdrew monies from ZJG's self-managed superannuation fund to pay an entry deposit for supported care for ZJG. When those monies were later refunded as ZJG moved to a different style of care, ZJF deposited the refund to a personal account in ZJG's name.
The Tribunal recorded, relevantly to this issue: [35] …[ZJF] saw no difficulty in intermingling the money in the self-managed superannuation account with [ZJG]'s personal accounts given [ZJG]'s age… and [71] [ZJF]'s evidence established the following: (9) He did not consider there was any issue created by intermingling the self-managed pension funds with [ZJG]'s personal funds.
ZJF's submission at the appeal hearing was that the monies could not be re-deposited to the self-managed superannuation fund at the relevant time, due to ZJG's age. There is no suggestion that there was evidence before the Tribunal at first instance to the contrary. We infer that the same submission was made at first instance, noting the reference to ZJG's age in [35] of those reasons.
Whilst ZJF's submission was that these paragraphs indicate that this issue was "in the Tribunal's mind" and that it must therefore have influenced the decision, importantly, nowhere does the Tribunal go on to make a finding that this conduct was inappropriate or involved conduct of concern as attorney at any level by ZJF.
Rather, ZJF confirmed at the appeal hearing that it was the Tribunal's use of the word "intermingling" which led him to infer that the Tribunal was finding that there was some impropriety or error in his conduct.
It is not difficult to understand the basis for this concern. To a lawyer, the word "intermingling" may carry connotations of impropriety or error, not found in the common usage of the word. It is unfortunate that the Tribunal used this word, in this context, for that reason.
However, we should consider the reasons as a whole and not parse and analyse them with an eye to error: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6 at [30].
In doing so, an examination of the reasons as a whole shows that this was not a finding of that nature, and that there were other findings, referred to below, upon which the Tribunal based its decision. We see no error established.
This ground has no merit.

Leave to appeal

ZJF relied upon three other grounds relating to issues of fact, or mixed fact and law: 1. The Tribunal erred in finding that arrears and interest were accruing to Bupa, and owed by ZJG. 2. The Tribunal erred in finding that ZAA had a reputation for financial abuse of elderly men. 3. The Tribunal erred in observing that ZJF had not taken appropriate action in relation to ZJG's health care and medical needs.
Those other grounds require leave to appeal. In Collins v Urban [2014] NSWCATAP 17 at [84], the Appeal Panel set out the circumstances where it is ordinarily appropriate to grant leave. The Appeal panel noted that 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, and set out a list of relevant factors. We apprehend that the Appellant's concerns engage with the following of those in this case: 1. a factual error that was unreasonably arrived at and clearly mistaken; or 2. 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,
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].
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: 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]) 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. 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.
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 NCAT Act, Lindsay J, at [44] stated, relevantly, that: 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].

Should leave to appeal be granted?

ZJI opposes the grant of leave. We must consider the findings complained of, in the context in which they were made, to decide whether leave should be granted.

Ground 3 - The Tribunal erred in finding that arrears and interest were accruing to Bupa, and owed by ZJG.

This ground is encapsulated by Ground 1. For the reasons expressed in relation to that Ground, we are not satisfied that the Tribunal made this finding.

Ground 4 - The Tribunal erred in finding that ZAA had a reputation for financial abuse of elderly men.

It is necessary to briefly document the background to this issue. It was in contest between the parties at first instance whether ZJG's monies had been inappropriately applied for the benefit of a lady, who we will identify as ZAA and her husband, who we will identify as ZAB. They met ZJG several years ago. The nature of how those monies were applied is recorded below in [74] of the Tribunal's reasons and was not subject to challenge in the appeal. In the hearing at first instance, there was evidence before the Tribunal that Bupa staff believed ZAA had a reputation for befriending and then taking financial advantage of older men. That was denied by ZJF.
The relevant paragraph of the reasons which ZJF said was the basis for this ground is recorded below: [74] Despite Bupa Staff's documented concerns about [ZAA]'s reputation for financial abuse of elderly men, [ZJF] had provided [ZAA] and [ZAB] with unfettered access to [ZJG]'s account by providing them with a debit card. He did not monitor expenditure on the account and did not consider it was inappropriate that [ZJG] has provided them with funds in excess of $70,000.00 for vehicles and renovations to their home. These payments were separate from large regular cash withdrawals from the account, the $5,000.00 payment for the cruise and the fact that [ZJG] paid for all of their all their (sic) expenses when they went on outings or trips.
It is apparent from this paragraph that the Tribunal made no finding that ZAA had "a reputation for financial abuse of elderly men." Rather, the finding was that, in the context of that being alleged, ZJF did not do enough to protect ZJG. The Tribunal made that finding after recording earlier, another finding at [71(6)] of the reasons that, amongst other findings, ZJF did not have any qualms about ZJG paying all the expenses for three people when they went on holidays or outings and did not consider that ZAA and ZAB should bear their own expenses.
In that context, the finding the Tribunal did make at [74] was unexceptional.

Ground 5 - The Tribunal erred in observing that ZJF had not taken appropriate action in relation to ZJG's health care and medical needs.

The Tribunal made this finding in the paragraph below: [46] The Tribunal was satisfied in the evidence that [ZJF] displayed a complete lack of insight into [ZJG]'s cognitive impairment and its effect on his ability to make decisions. He did not communicate with [ZJG]'s medical and health professionals regarding [ZJG]'s health care and medical needs and had been dismissive when Bupa Staff raised any concerns for [ZJG]'s health or the fact that [ZAA] and [ZAB] would not comply with Bupa's recommendations regarding care and equipment when they took [ZJG] from the facility. [ZJF] had not visited [ZJG] until 2018 and would not be able to have any meaningful discussion with [ZJG] about any health care decisions by telephone. He had effectively delegated this to [ZAA].
The Tribunal gives a clear outline of the other relevant findings which supported its conclusion, now the subject of this Ground of Appeal. An examination of the reasons as a whole reveals the evidence the Tribunal received upon which it based those findings. Whilst ZJF disagrees with those findings, they do not represent a manifest error in the decision or decision-making process under review, which merits a grant of leave.
Leave to appeal is refused.

Decision

No error of law is established and the Appeal Panel Orders: 1. Leave to appeal is refused. 2. 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: 16 January 2019

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