ZJK v ZJM

NCAT Appeal Panel|2020-01-29

Background to the decisions under appeal

The Mother died on 26 September 2019.
She is survived by her two sons. They have been in dispute about their mother's care, and decisions made by the Tribunal's Guardianship Division about their mother, since at least April 2018.
At the time of her death the Mother was the named appellant in an appeal, filed on 10 September 2019, against five decisions of the Guardianship Division of this Tribunal made in relation to her from April 2018 onwards, as follows: 1. an interlocutory decision of 4 April 2018 not to grant ZJJ's request to summarily dismiss an application to review an enduring guardianship appointment made by the Mother, which was brought by the manager of the aged care facility where she was living; 2. a decision of 24 May 2018 in the same terms, at the request of ZJJ; 3. a decision of 31 October 2018, which appointed ZJM as her guardian; 4. an interlocutory decision of 28 February 2019 not to summarily dismiss a financial management application brought by ZJM, at the request of ZJJ; and 5. another interlocutory decision on 8 August 2019 not to summarily dismiss the financial management application at the request of ZJJ.

The Mother's participation in the applications in the Guardianship Division and the appeal

When the Tribunal first made an order appointing a guardian for the Mother in May 2018, it was satisfied that the Mother had advanced dementia, was "unable to follow instructions," required care for all activities of daily living and was mostly "non-verbal". The Tribunal also accepted evidence from both ZJJ and ZJM that the Mother was unable to participate in the hearing due to her advanced dementia: see [14(i)]-[14(ii)] and [51] of the Tribunal's reasons for decision dated 24 May 2018.
At subsequent hearings both in the Guardianship Division and on appeal from decisions made by the Guardianship Division, that position appears to have remained unchanged.
For example, in reasons for deciding to dismiss an appeal by ZJJ from the Tribunal's decision of 24 May 2018 (ZJJ v ZJK [2019] NSWCATAP 126), the Appeal Panel recorded, at [6], that on 6 December 2018: At the start of the hearing, [the Mother] participated by telephone with the assistance of her daughter-in-law. It soon became apparent that [the Mother] was unable to express a view about the matters raised in the appeal, apparently because of her disability. We decided to excuse her from attending the hearing. Neither the [ZJJ] nor the [ZJM] objected to that decision.
ZJJ also unsuccessfully appealed the Tribunal's orders of 31 October 2018 (to the Supreme Court and then the Appeal Panel) and those of 28 February 2019 (to the Appeal Panel): ZJJ v ZJK [2019] NSWCATAP 209. Again, it does not appear that the Mother was able to meaningfully participate in any of those proceedings.

The appeal proceedings

In the Notice of Appeal filed on 10 September 2019, ZJJ is named as the Representative of the Mother, although at no time has he been given leave to act in that role. He signed the Notice of Appeal for the Mother.
On discovering that the Mother had died, the Tribunal issued directions to ZJJ and ZJM on 1 October 2019, relevantly, in the following terms: 1. ZJJ is to file and serve [a] written submission as to why the appeal should not be dismissed, and if it is to continue to identify the basis of the appeal, the identity of the Appellant and the orders proposed by the Appellant… 2. ZJM is to serve written submissions in reply… 3. The submissions are to include whether the appeal panel may dispense with a hearing and decide the appeal on the papers. …
Apparently in response to that direction, ZJJ filed another Notice of Appeal, again with the Mother as the named appellant, signed by him and dated 22 October 2019. In that document, which could of course not have been prepared on the instruction of the Mother, ZJJ added two further decisions to the appeal: firstly, a decision of the Guardianship Division of 12 September 2019, which the Notice of Appeal says was to refuse to review the operation and effect of a power of attorney made by the Mother on 16 March 2011, and secondly, the directions by the Appeal Panel for the filing of submissions, made on 1 October 2019.
In the second Notice of Appeal, ZJJ requested that the appeal hearing not be conducted on the papers, but made no relevant submission as to why that should not occur. He attached submissions as to why the nominated decisions under appeal should be quashed, but not in any detail and in a way which made it clear that he simply wished to revisit the earlier decisions because he disagreed with them.
In his submissions in reply to the appeal, ZJM says that we should infer that the appeal was in fact first initiated by ZJJ and that, in his view, ZJJ only named the Mother as the Appellant as ZJJ had already been unsuccessful in appealing a number of the decisions challenged in this appeal before the Supreme Court and the Appeal Panel. He says that we should treat ZJJ as the Appellant, on that basis.
ZJM also points out that both he and ZJJ are the Mother's executors and says that, on that basis, ZJJ has no apparent authority to solely represent the Mother's interests after her death. He submits that the continuation of the appeal would be wasteful of the Tribunal's resources, and supports an order dispensing with a hearing.
ZJJ did not resile from the position that the Mother is the Appellant in relation to either of the Notices of Appeal which have been filed. However, the second Notice of Appeal, insofar as it relates to the decision of 1 October 2019, is against a decision made after the Mother's death. To that extent, we may readily infer that ZJJ is the sole author of that document in relation to that decision.

The requirement to conduct a hearing

Under s 50 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), the Tribunal must conduct a hearing for its proceedings, except, relevantly, where it makes an order dispensing with a hearing: s 50(1)(a) of the NCAT Act.
Under s 50(2) of the NCAT Act, we may only make an order dispensing with a hearing if we are satisfied that: … [T]he issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.
Before making such an order, we are required by s 50(3) of the NCAT Act to first afford the parties an opportunity to make submissions about the proposed order, and to take those submissions into account.
In relation to the appeal filed 10 September 2019, against each of the orders dated 4 April 2018, 24 May 2018, 31 October 2018, 28 February 2019 and 8 August 2019, we have taken the submissions of the parties into account. We are satisfied that we can adequately determine the issues in relation to the appeal against those decisions by the Mother in the absence of the parties, by considering the written submissions and other documents lodged with the Tribunal.
We have taken into account the fact that the Mother is now deceased, the nature of the decisions and the opportunity given to ZJJ and ZJM to make submissions about the appeal.
We order that a hearing of the appeal in relation to each of those decisions be dispensed with.
Insofar as the Appeal concerns the Guardianship Division's alleged decision of 12 September 2019 to refuse to review the operation and effect of a power of attorney made by the Mother on 16 March 2011, and the Appeal Panel's decision of 1 October 2019 to make directions for the filing of submissions as to whether the appeal of the earlier decisions should be dismissed and whether the hearing should be dispensed with, these decisions were not the subject of a Notice of Appeal when the directions of 1 October 2019 were made.
Nonetheless, they were clearly within the contemplation of the parties when they made their submissions about whether the Tribunal should dispense with a hearing of the appeal and neither party differentiated between those decisions and the earlier ones, in relation to whether a hearing should be dispensed with.
On that basis, we are satisfied that the parties have been afforded an opportunity to make submissions about dispensing with a hearing which would encompass the appeal against these decisions also.
Taking that into account, and noting that the appeal against both of these orders appears to be incompetent in any event, which we will deal with below, we decided we could also adequately determine the issues in relation to the appeal against those decisions in the absence of the parties, by considering the written submissions and other documents lodged with the Tribunal.

Determination of the Appeal filed on 10 september 2019, in relation to the orders of 4 April 2018, 24 May 2018, 31 October 2018, 28 February 2019 and 8 August 2019

The Notice of Appeal was lodged out of time in relation to each of these decisions. The first issue for us to consider in the appeal in relation to these decisions is whether we should extend the time for the lodgement of the appeal. If we do not, the appeal in relation to each of those decisions should be dismissed.
Section 41 of the NCAT Act gives the Appeal Panel a wide discretion to extend time. As noted by the Appeal Panel in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22, at [18], that discretion must be exercised judicially, having regard to the guiding principle in s 36 of the NCAT Act that the Tribunal "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings".
In Jackson, at [22], the Appeal Panel also set out the matters an Appeal Panel may be required to consider in an application for an extension time, being: 1. the length of the delay; 2. the reason for delay; 3. the Appellant's prospects of success (i.e. whether the Appellant has a fairly arguable case); and 4. the extent of any prejudice suffered by the respondent to the appeal.
Given that proceedings in the Guardianship Division are not inter partes in the traditional sense and are focussed on promoting the welfare and interests of the person the applications are about, the last of these considerations is less relevant in the context of this appeal. We would instead frame it as a consideration of whether the extension of time is likely to promote the welfare and interests of the Mother, on that basis.

The length of the delay

The delay in lodging the appeal against these decisions ranges from well over a year, in relation to the earliest decision, to a period of days in relation to the decision of 8 August 2019. Given the extensive nature of the parties' involvement in proceedings in the Guardianship Division and in the conduct of internal appeals within the Tribunal, the delay in relation to each of the decisions is important. This is particularly so given that the appeal in ZJJ v ZJK [2019] NSWCATAP 126, between these parties, also involved leave to extend time for the appeal, so the parties were aware of the requirement for appeals to be lodged in time.

The reason for the delay

No satisfactory explanation for the delay in filing the appeal has been provided. The closest either Notice of Appeal comes to doing so is in the following terms (contained in each Notice): If the application for leave to appeal had been granted to [ZJJ], then this application on behalf of [the Mother] might not have been made.
We do not find that argument persuasive.

The Appellant's prospects of success

The orders of 24 May 2018, 31 October 2018 and 28 February 2019 have already been the subject of appeals by ZJJ, which did not lead to them being varied, quashed or set aside. The decisions of 4 April 2018 and 8 August 2019 were interlocutory decisions, meaning that they can only be appealed with leave (s 80(2)(a) of the NCAT Act) and involved applications later dealt with by the Guardianship Division on a substantive basis, such that the appeal in relation to those applications, even if successful, could have no effect as the issues have merged into the final decisions. No reasons were sought by any party for the decision of 8 August 2019 in any event.
Even with the support of ZJJ, who continues to advocate in favour of the appeal grounds attributed to the Mother, we would assess the prospects of success if the appeal is allowed to proceed, as minimal.

Whether the extension of time is likely to promote the welfare and interests of the Mother

Given that the Mother is deceased, there is no advantage to her in the ongoing conduct of the appeal. Nor is there any alleged or obvious benefit to her estate.
We decided, given those considerations and findings, not to extend time for lodgement of the Notice of Appeal in relation to these decisions. The appeal in relation to these decisions should be dismissed.

Determination of the appeal in relation to the orders of 12 September 2019 and 1 October 2019

The Appeal in relation to the decision of 12 September 2019, whilst filed in time as the reasons for decision were not provided to the parties until December 2019, is incompetent as it does not disclose any grounds which the Appeal Panel could consider. The Tribunal's order and its subsequent reasons makes it clear that it did conduct a review of the power of attorney made by the Mother on 16 March 2011, albeit that it then decided not to make orders under s 36 of the Powers of Attorney Act 2003 (NSW). This is contrary to the Appellant's assertion that the Tribunal decided not to conduct a review of the instrument and relevant as the Notice of Appeal filed 22 October 2019, at point 5 of annexure "A", makes it clear that the only decision appealed from is: "Orders of 12 September 2019 limited to not reviewing a Power of Attorney dated 16 March 2011." (Original emphasis retained)
The appeal in relation to the Appeal Panel's decision to make ancillary orders on 1 October 2019, whilst made in time, is also incompetent as the Tribunal has no internal appeal jurisdiction over decisions of the Appeal Panel: s 32(3)(a) of the NCAT Act.
The appeal in relation to those decisions should also be dismissed.

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 under s 65(1) of the NCAT Act. Being an official report of the appeal proceedings, that prohibition does not apply to these reasons for decision due to s 65(3) of the NCAT Act. Nonetheless, because of the sensitive nature of the matters raised in these proceedings, we have decided to order, pursuant to ss 65(1)(a)-(c) of the NCAT Act that the publication of these reasons, or any part of them, either by sound recording or transcript which includes any details that may identify the parties is prohibited.

Orders 1. The Tribunal dispenses with a hearing in relation to the Appeal. 2. Leave to extend time to lodge the Notice of Appeal in relation to the decisions of 4 April 2018, 24 May 2018, 31 October 2018, 28 February 2019 and 8 August 2019 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 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: 29 January 2020

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