ZLT v NSW Trustee & Guardian

NCAT Appeal Panel|2019-05-24|Before: Armstrong J

Introduction

This is an appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) ("the NCAT Act") from a decision of the Guardianship Division of the Tribunal made on 14 February 2019 in which the Tribunal confirmed a financial management order appointing the NSW Trustee and Guardian ("NSWTG") to manage ZLT's estate.
We have concluded that the appeal should be dismissed. As a result, management of the estate of the appellant continues to be committed to the NSWTG, with the exception that any entitlement to disability support pension continues to be excluded from the management order.

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 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.

History of the current order

ZLT is a 56-year-old man who resides in regional New South Wales.
On 8 May 2009, an application for a financial management order in relation to ZLT was made with the former Guardianship Tribunal of NSW ("the former Tribunal") by an advocate at the Disability Advocacy Service, in light of information that ZLT was due to receive a significant settlement from his late father's estate (approximately $120,000.00).
Upon conducting a hearing into the application on 22 October 2009, the former Tribunal made a financial management order in relation to ZLT, appointing the NSW Trustee (now the NSW Trustee and Guardian) as his financial manager. ZLT's Disability Support Pension was excluded from the financial management order. The reasons for the order explain that it was reported to the Tribunal that ZLT had a history of drug and alcohol abuse and was noted to have a cognitive impairment since a serious motor cycle accident in 1994.
On 29 January 2013, ZLT lodged an application with the former Tribunal requesting that the financial management order be revoked. ZLT's application was on the basis that he was able to manage his estate himself and that NSWTG charged fees to manage his estate. ZLT's application was heard on 21 May 2013 and the former Tribunal confirmed the financial management order.

Decision under Appeal

On 17 July 2018, ZLT made an application to the Tribunal requesting the revocation of the financial management order. ZLT reported in his application that he was willing to keep his finances in the bank should the order be revoked, and explained that the NSWTG's management fees were too excessive.
The applicable test the Tribunal must apply when determining an application seeking the revocation of a financial management order is outlined in s 25P(2) of the Guardianship Act 1987 (NSW) ("the Act"): 25P Action on review … (2) The Tribunal may revoke a financial management order only if: (a) the Tribunal is satisfied that the protected person is capable of managing his or her affairs, or (b) the Tribunal considers that it is in the best interests of the protected person that the order be revoked (even though the Tribunal is not satisfied that the protected person is capable of managing his or her affairs).
A directions hearing was held on 19 October 2018 relating to ZLT's application. The Tribunal listed the application for hearing on 22 November 2018 and made the following direction to ZLT: Before the hearing, [ZLT] should provide any evidence he wants to rely on in the hearing regarding his capacity to manage his finances or why it is in his best interests that the financial management order should be revoked. This may include reports from his doctor or other health professional. Before the hearing, [ZLT] should provide to the Tribunal a budget to show how he proposes to manage the funds currently held by the NSW Trustee and Guardian. Also, a budget to show how he currently manages his Disability Support Pension which is excluded from management under the financial management order.
The hearing of 22 November 2019 was adjourned and the following reasoning for the adjournment provided at [7] to [8]: [ZLT] is seeking a report from a psychologist or other suitable health care professional as to his capability to manage his financial affairs. He may be seeking a referral from his GP to consult the psychologist. The report should indicate the capability of [ZLT] to deal with a lump sum and planning for his financial future. A report from a financial counsellor might also be of assistance dealing with [ZLT]'s capability to manage his day to day financial affairs and budget. Such an assessment might be sought from financial counselling services such as Samaritans or Salvation Army. At the request of [ZLT], the Tribunal decided to adjourn the hearing of the review of the application for the revocation of the financial management order so that [ZLT] has the opportunity to obtain these documents.
The hearing into ZLT's application finally proceeded on 14 February 2019. The Tribunal reserved its decision at the conclusion of the hearing. The orders the subject of this appeal were then issued on 16 February 2019 and the reasons for the decision were forwarded to the parties on 28 February 2019.
Despite the earlier directions issued to ZLT and the basis upon which the hearing of 22 November 2018 was adjourned, the Tribunal's reasons note at [13] that: [ZLT] provided a budget regarding his day to day financial affairs and his plans in dealing with the lump sum moneys. No health professional reports from a psychologist or other appropriate health care professional were provided to the Tribunal regarding the capability of [ZLT] to manage his financial affairs. [ZLT] provided a discharge summary referral from [a public hospital] dated 13 November 2018 but this did not include an assessment as to the capability of [ZLT] to manage his financial affairs. In particular, no health professional assessment was provided as to the capability of [ZLT] to manage his lump sum savings.
The Tribunal went on to conclude that the order should not be revoked on the basis that ZLT is capable of managing his affairs, concluding at [20]: The Tribunal is not satisfied that based on the current evidence that [ZLT] is capable of managing his financial affairs and, in particular, the lump sum savings. These savings need to be properly managed for [ZLT]'s financial future. The Tribunal has not received any cognitive assessment as to [ZLT]'s capability to manage his lump sum financial affairs in light of his history in spending lump sum savings over a relatively short period of time and the reference to cognitive impairment in previous Reasons for Decision. The Tribunal considered the s 4 Guardianship Act principles particularly the welfare and interests of [ZLT] and that his lump sum savings need to be protected for his financial future and financial needs. The financial management order should not be revoked on this basis.
Similarly, the Tribunal determined that the order should not be revoked on the basis that it would be in ZLT's best interests to do so, explaining at [21]: The Tribunal was not satisfied that the financial management order in relation to [ZLT] should be revoked as it is not in his best interests to do so. [ZLT]'s lump sum savings needs to be protected for his financial future and financial needs. It is in accordance with the welfare and interests of [ZLT] that he is not financially disadvantaged and the moneys are preserved for his financial future.

Scope and nature of appeals

Internal appeals may be made as of right on a question of law, and otherwise with leave of the Appeal Panel: s 80(2) of the NCAT Act.
Without expressing exhaustively possible questions of law, the Appeal Panel has previously identified the following as questions of law (e.g. Prendergast v Western Murray Irrigation [2014] NSWCATAP 69 at [13]): 1. whether there has been a failure to provide adequate reasons; 2. whether the Tribunal identified the wrong issue or asked the wrong question; 3. whether a wrong principle of law had been applied; 4. whether there was a failure to afford procedural fairness; 5. whether the Tribunal failed to take into account relevant (that is, mandatory) considerations; 6. whether the Tribunal took into account an irrelevant consideration; 7. whether there was no evidence to support a finding of fact; and 8. whether the decision is so unreasonable that no reasonable decision maker would make it.
As to appeal grounds other than on questions of law, in Collins v Urban [2014] NSWCATAP 17, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1. issues of principle; 2. questions of public importance or matters of administration or policy which might have general application; or 3. 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; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. 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.

Grounds of appeal / Appeal Hearing

ZLT filed an appeal of the 14 February 2019 decision on 19 March 2019. The grounds of appeal, as stated in the Notice of Appeal, are as follows: The Tribunal did not take into account my plan to invest funds in secure bonds The Tribunal gave undue weight to my comment about Bitcoin I deny that I have any cognitive impairment I have been managing my pensions I didn't have legal assistance at the hearing.
ZLT seeks an order that the financial management order is revoked.
It is appropriate for the Appeal Panel to consider the grounds of appeal in the context that ZLT is self-represented, and therefore, it may have been difficult for him to clearly articulate those grounds and distinguish between questions of law and errors of fact in relation to which leave to appeal is required.
In Cominos v Di Rico [2016] NSWCATAP 5, the Appeal Panel stated at [13]: It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) provides that that Tribunal 'may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.'
Based on the grounds of appeal provided by ZLT in his notice of appeal, and the submissions he made to us at the hearing, we have identified the following as possible grounds of appeal: 1. That ZLT was denied procedural fairness: this is on the basis that ZLT did not have the benefit of legal representation in the hearing; and 2. That the Tribunal made a factual error that was unreasonably arrived at and clearly mistaken: ZLT asserts that the Tribunal failed to take into account his plans to invest funds in secure bonds and gave undue weight to comments he made about Bitcoin in concluding that the order should not be revoked.
The first ground involves a question of law, while the second requires the leave of the Appeal Panel.
We did not consider that ZLT's statements which deny that he has a cognitive impairment and state that he has been managing his pension amounted to identifiable grounds of appeal.
The notice of appeal did not specify whether ZLT sought leave to appeal on grounds other than a question of law. In any event, and for the reasons which follow, we decided there was no basis to grant leave for those grounds which concerned the Tribunal's findings of fact.
ZLT submitted documentation for the purposes of the appeal. Apart from an email dated 29 April 2019 and a handwritten letter (undated), as far as we could ascertain all other documents were copies of documents that were in evidence before the Tribunal in the hearing subject of the appeal. As ZLT did not submit a transcript for that hearing or a copy of the sound recording, we were limited in determining his appeal to his submissions and the reasons for decision.
The only party to the appeal proceedings other than ZLT was the NSWTG. The NSWTG did not make any submissions prior to the appeal, and whilst an officer of the NSWTG attended the hearing before us and provided useful background information, it is fair to say that the NSWTG did not play an active part in the appeal.

Ground 1 - That the appellant was denied procedural fairness

In the Notice of Appeal ZLT stated that he did not have legal assistance at the hearing held on 14 February 2019 and that this formed one of his grounds of appeal.
There was no record in the reasons for decision issued by the Tribunal that ZLT had requested leave to be legally represented or that he sought an adjournment to allow him to obtain representation. When we questioned ZLT about this he said that he had not raised the issue of wanting to be legally represented during the hearing.
It was evident to us that ZLT found the hearing before us challenging. On several occasions he provided responses to questions we posed to him which were not relevant to the subject matter of his appeal. It was highly probable that he also found the hearing before the Guardianship Division of 14 February 2019 challenging and he would certainly benefit from being legally represented or assisted by an advocate in any future proceedings before the Tribunal.
Nonetheless, it was not open to us to conclude that ZLT had been denied procedural fairness in circumstances where he had not raised the issue of legal representation in any manner in the hearing the subject of his appeal. ZLT had the opportunity to seek leave to be legally represented in the proceedings or to request an adjournment to allow him to obtain legal representation. Unfortunately, as confirmed through his own submissions to us, he took no such steps.
This ground of appeal is not established.

Ground 2 - That the Tribunal made a factual error that was unreasonably arrived at and clearly mistaken

ZLT was of the view that the Tribunal had made an error in deciding not to revoke the financial management order over his estate.
Given the parameters of s 25P(2) of the Act, the Tribunal could only have revoked the order if it made a factual finding on the evidence available that ZLT was capable of managing affairs or that revoking the order would be in ZLT's best interests. We understood ZLT's position to be that the Tribunal gave undue weight to comments he made in the hearing about Bitcoin, and failed to have regard to his plans to invest his funds in secure bonds (if the order was revoked), which resulted in an erroneous finding that the order could not be revoked.
As to the issue of comments regarding Bitcoin, the Tribunal's reasons make the following reference to Bitcoin at [14]: The Tribunal discussed with [ZLT] his plans if he was managing the lump sum. He indicated that he intended to invest the monies in a term deposit but also said that he has heard that investing in bitcoin is a "good thing".
As to the issue of ZLT's stated plans to invest in secure bonds if the order was revoked, there is no reference to such submissions in the Tribunal's reasons nor could we identify any reference in the documents that were before the Tribunal. As we did not have a transcript or sound recording of the hearing available to us we cannot conclude with any certainty as to whether there was such information before the Tribunal as asserted by ZLT.
In any event, we are not satisfied that either of these evidentiary matters played any substantial role in leading the Tribunal to make the decision it did. The Tribunal's reasons make it clear, at [20], that the predominant evidentiary issue that led to the conclusion that the order could not be revoked on the basis that ZLT was capable to manage his own affairs was the lack of any cognitive assessment indicating that he was so capable. It was not clear to us how the evidentiary matters raised by ZLT could have been relevant to the Tribunal's conclusion that it was also not in his best interests that the order be revoked, the only other basis on which revocation could have been ordered.
Accordingly, we are not satisfied that the Tribunal made a factual error that was unreasonably arrived at and clearly mistaken, in determining that the financial management order over ZLT's estate could not be revoked. We are not satisfied that this ground of appeal merits a grant of leave.

Orders 1. The appeal is dismissed; 2. Leave to appeal is refused.

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 June 2019

At a glance

Court

Decision date

Before

Source

Judgment (10 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (6)