ZJJ v ZJK

NCAT Appeal Panel|2019-06-20

REASONS FOR DECISION

This appeal concerns an 88 year-old woman with dementia living in an aged care facility in Sydney. One of her two sons appeals against the decision, made on 31 October 2018 by the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT), to make a guardianship order in respect of the mother and to appoint his brother as her guardian. In addition, the appellant appeals against two interlocutory decisions made by a differently constituted Tribunal on 28 February 2019: the decision to decline to exercise the power to summarily dismiss an application for a financial management order lodged by his brother in August 2018 and the decision to decline to "withdraw company documents".
For the reasons that follow, we have decided to dismiss the appeal brought against each of these three decisions.

Publication of parties' names

The publication or broadcast of the name of any person mentioned or otherwise involved in an "internal appeal" against decisions made by the Guardianship Division of NCAT is prohibited: ss 65(1), 65(2) 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: s 65(3) of the NCAT Act. Nonetheless, because of the sensitive nature of the matters discussed in these reasons, we will not refer to the parties by name.

Decision to make a guardianship order in respect of the Mother

Before addressing the Appellant's grounds of appeal, we must determine a preliminary issue, namely whether the Appeal Panel has power to determine the internal appeal brought against the decision made by the Tribunal on 31 October 2018 to make a guardianship order in respect of the Mother ("the October 2018 decision"), in circumstances where the Supreme Court of New South Wales dismissed an appeal brought by the Appellant against the October 2018 decision. The answer to that question turns on the proper construction of cl 12(4) of sch 6 to the NCAT Act, which provides that an appeal to the Supreme Court precludes an "internal appeal" against the same decision, unless the appeal to the Supreme Court is withdrawn with the approval of the Court for the purpose of enabling an internal appeal against the decision.
The NCAT Act defines an internal appeal to mean an appeal to the Tribunal against an internally appealable decision: s 32 of the NCAT Act. The October 2018 decision is an "internally appealable decision" and an "appealable Division decision" because it is a decision over which the Tribunal has internal appeal jurisdiction: s 32(1). The Tribunal has internal appeal jurisdiction over the October 2018 decision because it is a "general decision", relevantly a decision made in the exercise of the power conferred by the Guardianship Act 1987 (NSW) to make a guardianship order: ss 29(1) and 29(3) of the NCAT Act.
In a decision made on 25 March 2019, Lindsay J dismissed the proceedings, initiated by the summons filed by the Appellant in the Supreme Court on 20 December 2018 ("the Summons"). In the Summons, under the heading "Type of Appeal" the Appellant wrote: "Seeking leave to appeal Orders made 31 October 2018; Seeking judicial review on an error of law; Seeking answers on a question of law". On 31 January 2019, the Appellant filed an "Amended Summons seeking leave to appeal" ("the Amended Summons"). There are several differences between the Summons and the Amended Summons. None appear to be relevant to this appeal.
This appeal is brought pursuant to cl 12(1)(a) of sch 6 to the NCAT Act. Schedule 6 of that Act deals with the Guardianship Division of the Tribunal. Part 6 of sch 6 deals with appeals. Contained in Part 6, cl 12 relevantly provides: 12 DIVISION DECISIONS MAY BE APPEALED TO EITHER APPEAL PANEL OR SUPREME COURT (1) A party to proceedings in which a Division decision that is an internally appealable decision is made (an "appealable Division decision") may appeal against the decision by either: (a) an internal appeal to an Appeal Panel in accordance with Division 2 of Part 6 of this Act, or (b) an appeal to the Supreme Court in accordance with this Part. … (3) An internal appeal precludes an appeal to the Supreme Court against the same decision unless the internal appeal is withdrawn with the approval of an Appeal Panel for the purpose of enabling an appeal to the Supreme Court against the decision. (4) An appeal to the Supreme Court precludes an internal appeal against the same decision unless the appeal to the Supreme Court is withdrawn with the approval of the Court for the purpose of enabling an internal appeal against the decision.
The Appellant contends that despite the decision made by the Supreme Court on 25 March 2019, he has a right to appeal to the Appeal Panel against the October 2018 decision. First, he contends that the proceedings initiated by the filing of the Summons were not in the nature of an appeal for the purpose of cl 12(4) of sch 6. Second, he asserts that cl 12(4) of sch 6 does not operate to prevent a party from bringing "consecutive appeals" in the Supreme Court and the Appeal Panel. Third, in the alternative he asserts that in the decision made on 25 March 2019, Lindsay J did not dismiss his appeal but rather decided that it was more appropriate that the appeal proceed by way of an internal appeal to the Appeal Panel.
The Brother and the separate representative for the Mother, solicitor Mr M Streeter, disagree. They argue that as a consequence of the decision made by Lindsay J to dismiss the appeal brought by the Appellant in the Supreme Court, by the operation of cl 12(4) of sch 6 to the NCAT Act, the Appellant is precluded from filing an appeal in NCAT.

Contention 1: The proceedings brought by the Appellant in the Supreme Court were not in the nature of an appeal

The Appellant contends that the proceedings he initiated in the Supreme Court, which were dismissed by Lindsay J on 25 March 2019, were not in the nature of "an appeal to the Supreme Court" for the purpose of cl 12(4) of sch 6 to the NCAT Act. He submits that as a consequence, cl 12(4) does not deprive him of the right to bring an internal appeal to the Appeal Panel under cl 12(1)(a) of sch 6.
The Appellant contends that the term "appeal to the Supreme Court" in cl 12(4), should be given a narrow meaning, namely "an appeal to the Supreme Court … on any question of law". In short, the Appellant contends that an appeal to the Supreme Court which requires leave of the Court is not in the nature of an appeal. Pointing to the cover sheet of the Summons, which is headed "Summons seeking leave to appeal" (emphasis added), the Appellant asserts that the proceedings commenced by the filing of the Summons were not in the nature of an appeal for the purpose of cl 12(4).
Clause 12(1) of sch 6 provides that a party to an appealable Division decision may appeal against that decision by either an internal appeal to an Appeal Panel in accordance with Division 2 of Part 6, or an appeal to the Supreme Court in accordance with Part 6 of sch 6. Contained in Part 6, cl 14 provides: 14 APPEALS TO SUPREME COURT UNDER THIS PART (1) A party to proceedings in which an appealable Division decision is made may appeal to the Supreme Court against the decision: (a) in the case of an interlocutory decision of the Tribunal--with the leave of the Court, or (b) in the case of any other kind of decision--as of right on any question of law, or with the leave of the Court, on any other grounds. Note: See also section 84 (Practice and procedure for appeals to courts under this Act).
To address the contention that the term "appeal to the Supreme Court" should be given the narrow meaning the Appellant urges us to adopt, requires examination of the text, context and purpose of cl 12(4). As French CJ, Hayne, Kiefel, Gageler and Keane JJ said in Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 at [22], the task of statutory construction involves the attribution of meaning to statutory text. That task must begin with the consideration of the text itself, but the meaning of the text must be construed by reference to the context and legislative purpose of the provision. (See also s 33 of the Interpretation Act 1987 (NSW); Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69]-[71]; Wilson v State Rail Authority of New South Wales [2010] NSWCA 198; (2010) 78 NSWLR 704 at [12]-[13]).
There is nothing in the text of cl 12 to indicate that the term "appeal to the Supreme Court" should be read down in the manner asserted by the Appellant.
Nor does the statutory scheme of which cl 12 forms part favour that interpretation. Clause 14 sets out the basis on which an appeal may be made to the Supreme Court, providing that a party may appeal to the Supreme Court against a decision (other than an interlocutory decision) as of right on any question of law, or with the leave of the Court on any other ground. Clause 14 uses the word "appeal" to refer to both appeals made with the leave of the Court and those made as of right on a question of law. The same word appearing in different parts of a statute should be given the same meaning, unless there is a sound reason not to do so: Registrar of Titles (WA) v Franzon [1975] HCA 41; (1975) 132 CLR 611 at [11] (Mason J). Here, none of the context, purpose or surrounding text indicate that the word "appeal" or the term "appeal to the Supreme Court" in cl 12 and cl 14 should be given a different meaning.
The interpretation favoured by the Appellant would permit a party to appeal against the same decision to both the Supreme Court and NCAT, provided the appeal was not made on a question of law. For the reasons discussed below, in our view that outcome would be contrary to the clear purpose of cl 12 of sch 6, which prevents a party from appealing a decision to both the Supreme Court and NCAT, except where the Appellant is given leave to withdraw the appeal by the Supreme Court/Appeal Panel for the purpose of enabling an internal appeal/an appeal to the Supreme Court against the decision: cll 12(3), 12(4).
Whether an appeal to the Supreme Court against a decision is made as of right on a question of law, or requires leave of the Court, is irrelevant to the question of whether it is an appeal to the Supreme Court for the purposes of cl 12(4). The contention that the proceedings brought by the Appellant in the Supreme Court were not in the nature of an appeal must be rejected.
In the interests of completeness, we note that the Summons lists several purported questions of law, suggesting that at least in the view of the Appellant, leave of the Court was not required to appeal the October 2018 decision.

Contention 2: Clause 12(4) of sch 6 to the NCAT Act only applies to concurrent appeals

The Appellant contends that cl 12(4) of sch 6 operates to prevent appeals being run concurrently in the Supreme Court and NCAT, not to prevent a party bringing appeals consecutively in the two jurisdictions.
The literal meaning of cl 12(4) is clear: an appeal to the Supreme Court against an appealable Division decision precludes an internal appeal against that decision, unless the appeal to the Supreme Court is withdrawn with the approval of the Court for the purpose of enabling an internal appeal against that decision. The interpretation favoured by the Appellant is at odds with that plain meaning.
In addition, the interpretation favoured by the Appellant is inconsistent with cl 12, read as a whole, which makes clear that a party seeking to appeal against a decision must elect to pursue the appeal in either the Supreme Court or in NCAT. This is apparent by first, the use of the words "either" and "or" in cl 12(1): "a party may appeal against an appealable Division decision by either (a) an internal appeal to an Appeal Panel … or (b) an appeal to the Supreme Court …". Second, the use of the word "or" in the heading to cl 12 "Division decisions may be appealed to either Appeal Panel or Supreme Court" (emphasis added). Third, the limited scope of the exception contained in cl 12(4) to the general rule created by cl 12(1). The interpretation favoured by the Appellant would extend the scope of that exception and require the words "or the Supreme Court has determined the appeal" to be read into cl 12(4) so that it reads: An appeal to the Supreme Court precludes an internal appeal against the same decision unless the appeal to the Supreme Court is withdrawn with the approval of the Court for the purpose of enabling an internal appeal against the decision or the Supreme Court has determined the appeal. (Emphasis added.)
Finally, the interpretation favoured by the Appellant is inconsistent with the clear purpose of cl 12: to prevent a party from appealing an appealable Division decision to both the Supreme Court and the Appeal Panel, except in the limited circumstances prescribed by cl 12(3) and cl 12(4). That interpretation would permit a party aggrieved by a decision made by the Supreme Court following an appeal brought under cl 12(1)(b), to bring an appeal to the Appeal Panel about the same decision under cl 12(1)(a).
Where, as here, a party has elected to appeal an appealable Division decision to the Supreme Court under cl 12(1)(b), they are precluded from appealing to the Appeal Panel, unless the appeal is withdrawn with the approval of the Court to enable an internal appeal against the decision.

Contention 3: The Supreme Court gave the appellant leave to appeal to the Appeal Panel against the October 2018 decision

In the alternative, the Appellant asserts that he was given leave by the Supreme Court to make an internal appeal to the Appeal Panel against the October 2018 decision. In the Notice of Appeal, the Appellant wrote "the alternative jurisdiction has suggested lodging an appeal in NCAT".
In reasons given for deciding to dismiss the proceedings ([case name redacted] [2019] Supreme Court of NSW, (unreported) Lindsay J, 25 March 2019) Lindsay J detailed the history of the proceedings initiated by the Appellant in NCAT and the Supreme Court. His Honour wrote at [7]: By these proceedings, [the Appellant] seeks to challenge that guardianship order [the decision made by the Guardianship Division of NCAT on 31 October 2018] essentially on the basis that, he says, the Guardianship Division of NCAT owed [the Mother] a duty of care which it breached in making orders for the appointment of [the Brother] as guardian.
His Honour commented at [15]: [The Appellant] has a tendency, it seems, manifested in these proceedings, to seek to forum-shop - in part, one suspects, with a view to wearing his brother down when it comes to management of the person.
His Honour concluded at [20]-[22]: [I]t seems to me the interests of the parties (including, importantly, [the Mother]) would be served best if these proceedings were dismissed, and the parties confine their attention to the present proceedings in the Guardianship Division of NCAT. It would be open to the parties in that forum to seek a review of the guardianship order and have NCAT seized of all the matters in dispute between them. It does not assist either the conduct of the business of the Court or the affairs of the parties generally for there to be forum-shopping of the type I have described, so the only order I make at the moment is order that these proceedings be dismissed.
The appellant contends that the reference in paragraph [20] "to the present proceedings in the Guardianship Division of NCAT" should be read to mean that his Honour gave him approval under cl 12(4) to bring an internal appeal in NCAT against the October 2018 decision. That argument is rejected. First, it is inconsistent with the text of the decision: "the only order I make at the moment is order that these proceedings be dismissed". Second, it is apparent from the judgment read as a whole that the reference in paragraph [20] to "the present proceedings in the Guardianship Division of NCAT" is a reference to the proceedings then on foot in NCAT, that is, the applications relating to financial management and Enduring Power of Attorney, listed for hearing on 12 June 2019, as referred to at paragraph [12] of the judgment.
Neither the decision made by Lindsay J nor the reasons he gave for that decision, support the proposition advanced by the Appellant that he was given the approval of the Court to withdraw the appeal for the purpose of enabling an internal appeal against the October 2018 decision. Furthermore, as the Appellant concedes, he did not withdraw the appeal made to the Supreme Court.
The contention that the Supreme Court approved the Appellant withdrawing the appeal to the Court for the purpose of enabling an internal appeal against the October 2018 decision, is rejected.

Conclusion

By the operation of cl 12(4) of sch 6 to the NCAT Act, the Appellant is precluded from bringing an appeal to the Appeal Panel against the October 2018 decision.

Decision made by the Tribunal to decline to exercise the power to summarily dismiss the application made by the Brother for a financial management order

On 24 August 2018, the Brother made an application to NCAT seeking a financial management order in respect of the Mother ("the Financial Management application"). The Appellant, in turn, made an application to NCAT seeking an order that the proceedings initiated by the Financial Management application be summarily dismissed. On 28 February 2019, the Tribunal decided to refuse to summarily dismiss the Financial Management application ("the dismissal decision"). The Appellant seeks leave to appeal against that decision.
Being an interlocutory decision, the Appellant requires leave to appeal against the dismissal decision: ss 4 and 80(2) of the NCAT Act. In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel stated at [84] that there must be a "sound basis" for granting leave to appeal under s 80(2) and 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. The Appeal Panel stated at [84] that 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.)
Despite clear directions being made by the Appeal Panel requiring the Appellant to file and serve submissions in support of the appeal, he failed to address in that material the basis for his assertion that the circumstances warrant the exercise of the discretion to grant leave to appeal against the dismissal decision. The Tribunal and the respondents to this appeal were left to second guess the basis for the application for leave. While allowance must be made for the fact that the Appellant is self-represented, his conduct of the appeal with respect to the dismissal decision can only be described as oppressive.
In oral submissions, the Appellant contended that leave should be granted because the Tribunal erred in finding that the Brother had a "genuine concern for the welfare" of the Mother and therefore the Brother lacked standing to make the application. As he points out, an application for a financial management order may only be made by the NSW Trustee, the person who is the subject of the application, or any person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person who is the subject of the application: s 25I of the Guardianship Act.
The Tribunal did not give written reasons for its decision to decline to dismiss the application. Nor did the Appellant request that the Tribunal provide a statement of reasons under s 62 of the NCAT Act.
The bald assertion made by the Appellant that the Brother did not have a genuine concern for the welfare of the Mother and therefore the Tribunal was "wrong" in deciding otherwise, falls a long way short of providing a proper basis for granting leave to appeal. At best it amounts to a challenge to the merit of that decision.
Leave to appeal the dismissal decision is refused.

Decision to decline to order the withdrawal of company documents

In support of the Financial Management application, the Brother filed several documents relating to Alon Pty Ltd. Those documents were not filed in the appeal. The parties agree that they consist of Alon's bank statements covering part of the period the Appellant held an appointment as the Mother's attorney. (In 2011, the Mother made an Enduring Power of Attorney appointing the Appellant and the Brother as her attorneys to act jointly and severally.) At the directions hearing on 28 February 2019, the Appellant asked the Tribunal to make orders directing the Brother to withdraw the Alon documents from the documents the Brother filed in support of the Financial Management application. The Tribunal declined to make that order ("the Alon decision"). Being an interlocutory decision, the Appellant requires leave to appeal against that decision.
The Appellant submits that the Alon decision was "clearly wrong" for the following reasons. First, because Alon is not a party to these proceedings. Second, he asserts that in filing the Alon documents, the Brother breached an obligation of confidentiality owed to Alon. Third, he asserts that the documents are not relevant to the determination of the Financial Management application.
The Tribunal has broad power to determine its own procedure: s 38(1) of the NCAT Act. We accept, as contended by the Appellant, that the Tribunal had power to direct the Brother to withdraw the Alon documents. However, we reject the contention that in declining to do so, the exercise of the discretion miscarried for the reasons advanced by the Appellant.
First, the fact that Alon is not a party to proceedings is irrelevant to the question of whether the Tribunal erred in making the Alon decision. There is nothing in the NCAT Act, its regulations or rules, to prevent a party from filing documents created by third parties.
Second, apart from asserting that by filing the Alon documents the Brother breached an obligation of confidentiality, apparently owed to Alon, the Appellant neither particularised the bases for that assertion or provided any material in support. In any event, even if accepted that by filing the Alon documents the Brother breached an obligation of confidentiality owed to a third party, that is not determinative of the question of whether the disputed documents are admissible in the proceedings.
Finally, the assertion that Alon's bank statements were irrelevant to the proceedings cannot be accepted. The Mother was apparently a director and majority shareholder of Alon. A disputed fact in the NCAT proceedings was whether as the Brother contended the Appellant had abused his position as attorney by using Alon's funds for his own purposes. It is apparent that the Alon bank statements could rationally affect (directly or indirectly) the assessment of the probability of the existence of whether, as alleged, the Appellant had used Alon's funds for his own purposes. In turn, that finding could be relevant to whether the pre-conditions to making a financial management order are satisfied, namely, that there is a need for another person to manage the Mother's financial affairs and it is in her best interests that a Financial Management Order be made: s 25G of the Guardianship Act. Whether, ultimately the Tribunal finds the Alon documents to be reliable, or to support the allegation made by Brother, is not to the point. On their face they are relevant.
The contention that the Alon decision was "clearly wrong" is rejected. Leave to appeal is refused.

Orders 1. By the operation of cl 12(4) of sch 6 to the Civil and Administrative Tribunal Act 2013 (NSW), the appellant is precluded from bringing an internal appeal against the decision made by the Tribunal on 31 October 2018 to make a guardianship order in respect of the Mother. The Appeal is dismissed. 2. Application for leave to appeal the decisions made on 28 February 2019 is refused. 3. Any party seeking to make an application for costs must file and serve their application and short submissions in support of that application within 14 days of the date of this decision.

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. 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: 19 August 2019

Civil and Administrative Tribunal Regulation 2013(NSW)

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