ZLU v ZLV

NCAT Appeal Panel|2019-08-06|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 New South Wales Civil and Administrative Tribunal ("the Tribunal") made on 12 February 2019 in which the Tribunal appointed ZLU as ZLV's financial manager. ZLU has appealed that decision as she is of the view that the Tribunal was in error in deciding there was a need for a financial management order to be made.
We have concluded that the appeal should be dismissed. As a result, ZLU remains ZLV's financial manager.

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 the Tribunal, is prohibited: s 65(1)(a) 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.
Accordingly, in this appeal, the parties (apart from the NSW Trustee and Guardian) have been assigned pseudonyms as follows:

Background

ZLV is an 83-year-old woman who has three daughters. She resides at her house in suburban Sydney with two of her daughters, ZLU (the appellant) and ZLX. On 9 November 2017, ZLV revoked the appointment of another daughter, ZLW, as her enduring guardian and enduring attorney, and instead appointed ZLU as her enduring guardian, and ZLX as an alternative enduring guardian. An enduring power of attorney document was also created, purporting to appoint ZLU as ZLV's enduring attorney, and ZLW as her alternative enduring attorney, but that did not become operative until the certificate under s 19 of the Powers of Attorney Act 2003 (NSW) was completed on 18 September 2018.
On 29 June 2018, ZLW made two applications to the Guardianship Division of the Tribunal - an application for a guardian to be appointed for ZLV under Pt 3 of the Guardianship Act 1987 (NSW), and an application for the appointment of a financial manager in relation to ZLV's estate under Pt 3A of the Guardianship Act. The hearing of those applications commenced on 18 September 2018, and was adjourned part-heard until 12 February 2019 when the remainder of the hearing was conducted.
ZLV, ZLU and ZLW were all present at the Tribunal hearings and gave evidence and/or submissions. ZLU opposed the making of guardianship or financial management orders, saying that she and her sister, ZLX, were assisting their mother informally in the course of living with her at her home. In the end, the Tribunal decided to dismiss the application for a guardianship order, and made a financial management order, committing ZLV's estate to management, and appointing ZLU the financial manager of ZLV's estate subject to the authorisation and directions of the NSW Trustee and Guardian (see s 25M(2) of the Guardianship Act). The Tribunal decided that the order appointing a financial manager should be reviewable and that review is due in February 2020.
Informing the Tribunal's decision was medical evidence in the report on ZLV by Dr X, a geriatrician, which stated that ZLV has dementia, was cognitively impaired, and also suffered a number of other physical conditions. The Tribunal also noted a report from ZLV's general practitioner, stating that in his opinion, ZLV remained "mentally competent to sign legal documents".
Having considered the evidence, the Tribunal found that ZLV was in fact a person for whom a guardianship order could be made, but decided not to exercise its discretion to make a guardianship order for ZLV, as there were no decisions which needed to be made which could not otherwise be made informally, given her current circumstances.
The financial management application required not only discussion as to whether ZLV was incapable of managing her financial affairs (the Tribunal found she was), but also discussion about, among other things, whether there was a need for another person to manage ZLV's affairs, and whether that would be in her best interests. The Tribunal explored at some length the evidence of ZLV's financial accounts, and oral evidence given by ZLU about how those accounts were managed, on the basis that ZLU and ZLX were adequately assisting ZLV to manage her affairs on an informal basis.
On balance, the Tribunal could not exclude the possibility raised by the evidence that ZLV was being exploited, and further, did not accept some of the explanations given by ZLU in relation to certain expenditure from ZLV's account. The risk of exploitation, the Tribunal concluded, was "unacceptable", and it was therefore in ZLV's best interests that a financial management order be made.
Notwithstanding the earlier finding, the Tribunal found ZLU to be a suitable person to be appointed ZLV's financial manager, as it was in ZLV's best interests to minimise the impact of intervention into her affairs when there was no positive finding that ZLU had in fact exploited ZLV, and any risk of exploitation that remained could be suitably tempered by the supervision of ZLU by the NSW Trustee and Guardian in its statutory role. The Tribunal provided the following reasoning: 68 The Tribunal was mindful in trying to protect [ZLV]'s estate to not cause significant disruption to her life. That, too, would not be in her interests. A balance needed to be found between reducing the risk to her and enabling her to live her life without the undue involvement of strangers. 69 In the Tribunal's view, one way that might be achieved was to appoint [ZLU] as manager of the estate with the supervision of the NSW Trustee that that brought with it. That, in the Tribunal's view, should reduce the present risk of exploitation to a more acceptable level. The question might properly be asked whether [ZLU] was suitable for appointment given the concerns about exploitation. No positive finding of exploitation had been made against her, however, and the involvement of the NSW Trustee, primed with knowledge of the concerns, would be expected to be a tempering influence, keeping her on her guard to be seen to be doing the right thing. Nevertheless, it was close call in the Tribunal's mind. 70 In making that call, the Tribunal also gave [ZLU] the benefit of the doubt about her willingness to cooperate with the supervisory regime. Again, it was a very close run thing. 71 The making of an order, and the appointment of [ZLU], would, in the Tribunal's view, minimise the disruptive impact on [ZLV]'s life, but provide her with a measure of protection from possible exploitation. It provides, in the Tribunal's view, an appropriate balance of the competing considerations. However, because of the closeness of the calls involved, the Tribunal decided that the financial management order should be reviewed within 12 months, when the NSW Trustee can report to the Tribunal on the management of the estate by [ZLU], including her cooperation and compliance with its supervisory requirements. If there are issues on those fronts, the balance may tip in favour of the revocation of [ZLU]'s appointment and the appointment of the NSW Trustee as manager.

Notice of Appeal and preliminary matters

On 26 March 2019, ZLU lodged a Notice of Appeal with the Tribunal challenging the order appointing her as ZLV's financial manager under the authority and directions of the NSW Trustee and Guardian.
In the Notice of Appeal, ZLU stated that the order she wished for the Appeal Panel to make was: Order should be Enduring Power Of Attorney given to [ZLU] and [ZLX].
We understood this order to in fact be a request for the Appeal Panel to conclude that the making of the financial management order should be overturned and no further orders made. This would revive the purported Enduring Power of Attorney entered into by ZLV on 9 November 2017 (see [5] above).
At the time that the Notice of Appeal was lodged, ZLU also made an application that the order the subject of the appeal be stayed until the appeal had been determined. That application was heard on 9 April 2019 and was refused. At the same time, the Appeal Panel gave directions to the parties, appointed a Guardian ad Litem for ZLV, and set the matter for hearing.
The hearing of the appeal was listed for 18 June 2019. Unfortunately the hearing could not proceed on that day. This was primarily due to administrative difficulties, in that the recording equipment malfunctioned in the allocated hearing room and there was a significant delay in identifying an alternative hearing room. The Appeal Panel did however take the opportunity to issue further directions to the parties, relist the matter for hearing on 6 August 2019, and granted leave to ZLW to participate in that next hearing by telephone, given that she resides interstate.

The Guardian ad Litem

By a letter dated 8 May 2019, the Appeal Panel and parties were advised by the Office of the General Counsel of the Department of Justice that Mr Stephen Stuart had been appointed to the role of Guardian ad Litem for ZLV.
ZLU by a letter dated 22 July 2019 applied to: the Appeal Panel for permission to appeal "for leave" from the appointment of the Guardian ad Litem.
This letter was followed by a letter, purportedly from ZLV, dated 30 June 2019, which stated, in part: I, [ZLV], do not wish to be represented by the appointed Guardian ad Litem, Stephen Stuart, as he is not protecting or promoting my best interests. I believe I have the right to appoint a solicitor/lawyer of my own choosing or represent myself in respect to the above issues (the appeal).
A directions hearing was held on 31 July 2019 to deal with the issues raised in ZLV and ZLU's correspondence.
At the directions hearing, the Appeal Panel made it clear that if a party wished to appeal the appointment of the Guardian ad Litem, that would need to be determined by the Supreme Court. The Appeal Panel cannot determine an appeal of its own orders. However, the Appeal Panel may revoke the appointment of a Guardian ad Litem: s 45(4A) of the NCAT Act and it was this discretion that we understood was sought to be invoked.
ZLU submitted that Mr Stuart had not taken into account ZLV's views, opinions, wishes and was not safeguarding or representing ZLV's interests. There was disagreement between ZLU and Mr Stuart as to what attempts had been made by Mr Stuart to meet with ZLV subsequent to them first meeting on the day of the aborted hearing (18 June 2019) and the nature of the interactions Mr Stuart had with ZLU and ZLV on 18 June 2019.
We accepted the evidence of Mr Stuart that he had made numerous attempts to communicate with ZLV and were satisfied that he had made satisfactory efforts to endeavour to engage with ZLV between 18 June 2019 and the date of this hearing. Due to apparent obfuscation, or for other reasons, Mr Stuart was unable to engage with ZLV. We were not satisfied that the circumstances as presented to us warranted the exercise of our discretion to revoke the appointment of a Guardian ad Litem for ZLV.
Without criticism of Mr Stuart, the resultant circumstance was that there was little he could meaningful contribute to the appeal process. He was not aware of ZLV's views and he did not provide legal argument specifically in relation to the contended grounds of appeal. Accordingly the submissions of Mr Stuart did not contribute to any of our deliberations on the appeal.

Role and submissions of ZLV

A reply to the appeal, by ZLV was received on 8 April 2019 by the Tribunal. The reply contained the following statements: I don't need to be managed by the NSW Trustee. I want to be managed by my daughters [ZLU] and [ZLX]… I agree with my daughter [ZLU]. Neither of my daughters [ZLU] or [ZLX] have ever exploited me. They have supported me whenever necessary since I separated from [my former husband] in 1986.
We also received a three-page submission signed by ZLV, dated 3 July 2019. The submission primarily stated ZLV's position to be that she did not wish to have her estate in any way managed by the NSW Trustee and Guardian, that she wanted her daughters ZLU and ZLX to manage her affairs and that she wanted the current order overturned. The submission otherwise outlined what were labelled "false statements" contained within the Tribunal's reasons and largely replicated the content contained in ZLV's submissions.
We sought clarification from ZLV on when and how she prepared her submissions. ZLV was clearly confused about how that document, purportedly signed by her, came into existence and could not explain what the purpose of the document was. When we asked who had prepared the document for her, if she did not prepare it herself, she alternated between saying that perhaps the "guardian", or Mr Stuart, or perhaps ZLW had prepared it.
ZLU later explained that she had typed the submission on behalf of her mother, but asserted that it contained her mother's independently held views.
Making allowance for the stressful environment ZLV found herself in at the hearing, it was clear from her evidence that her cognition was significantly impaired. She had no memory of the production of the document nor could she explain what the purpose of the submission was. On that basis, we were not satisfied that the written submission presented to us was ZLV's own. When we asked ZLV if she wanted to express any view to us about the appeal she was unable to do so.
Accordingly, we have not endeavoured to take account of the submissions attributed to ZLV in relation to the grounds of appeal.

Role and submissions of ZLW

ZLW filed a reply to the appeal on 8 April 2019 in which she advised that she supported the orders made by the Tribunal. She also provided submissions dated 18 June 2019 and 1 July 2019.
From those submissions, ZLW's position is best summarised by the following extracts: In my reply to the appeal I stated that I support the original orders made by the Tribunal on 12 February 2019. I believe the Tribunal acted in the best interests of both parties involved. I believe the Tribunal acted carefully and with sensitivity regarding the case as they appointed [ZLU] as the financial manager of the estate. I also believe the Tribunal acted lawfully when making final decision, specifically in accordance to The Guardianship Act 2009. Overall, it is my belief that the submission [ZLU] has submitted is full of superfluous and repetitive information. Addressing each point of contention will not only be time consuming but also fruitless. Please refer to Point 63 regarding why the Tribunal made the decision it did. The Tribunal considered the reason why the appellant was appointed as Financial Manager under supervision as the alternative was that the Public Trustee (sic) take over the state of Mrs [ZLV] completely. I believe that the decision made by the Tribunal, as well as the reasons given for the decision were fair and justified, and that this appeal has been made on grounds that are frivolous and vexatious.
Given the nature of the grounds of appeal, it was understandable that ZLW did not specifically provide submissions on each ground directly. As such, whilst noting her position on the appeal generally, we have not sought to address her individual position on each of the grounds of appeal.

Grounds of Appeal

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.
On the Notice of Appeal, under the heading "Grounds for Appeal", ZLU provided as follows: - Unlawful procedure - has omitted facts (1) [ZLW]'s illegal access to [ZLV]'s bank account/theft from [ZLV] (2) Ignored [ZLU]'s maintenance & care of [ZLV] for the past 33 years (documented with evidence) (3) Written statement full of false statements - not supported by supporting documents and or the sound recording (edited or otherwise) (4) Written statement missing details from the hearing (5) The sound recording has been edited (6) Unlawfully referred to [ZLU] as exploitative without any evidence of facts to back it up
ZLU then stated in the Notice of Appeal that she was seeking leave to appeal and outlined the following grounds for which leave was sought: Financial Management Order (1) Tribunal ignored [ZLW]'s illegal access to [ZLV]'s bank account & history of theft from [ZLV]'s property (2) Tribunal ignored [ZLU]'s support & maintenance of [ZLV]'s property for the past 28 years (supporting documentation provided) (3) Written statement full of false statements - not what was said during hearing much of what [ZLV] said has been ignored & edited out of the second recording - please see comments on objections to written statement (4) Written statement missing whole conversations that took place on the 12th Feb (5) Sound recordings of the hearing on the 12th Feb has been edited - complete conversations edited out (I have given examples with proof in section Point F in the attached document. And other examples under Point A, B, C, & D) (6) Tribunal has referred (sic) to [ZLU] as 'exploitative' without facts & evidence (There is enough documented evidence in the supporting documents provided to the Tribunal to contradict these claims) (7) Tribunal not operating under the Act as they ignored what [ZLV] said at the hearing & in her supporting documents
At the hearing we advised ZLU that the grounds of appeal for which she sought leave were essentially the same grounds in which she asserted she did not require leave, except the additional ground asserting that the Tribunal was not 'operating under the Guardianship Act in ignoring evidence and documents of ZLV'. ZLU agreed that this was the case.
It was appropriate for us to consider the grounds of appeal in the context that ZLU was self-represented and that it may have been difficult for her to clearly articulate those grounds and distinguish between questions of law and errors of fact, or other matters, in relation to which leave to appeal is required. We therefore tried to discern those grounds, and to differentiate between them: Cominos v Di Rico [2016] NSWCATAP 5.
We reviewed ZLV's submissions in their entirety. They consist of over 53 pages, spread over correspondence to the Tribunal dated 25 March 2019, 2 April 2019, 2 May 2019, and three separate submissions dated 13 July 2019. Much of the content of the submissions was repetitive and failed to identify which submissions related to which grounds of appeal, if any. ZLV also submitted the Tribunal's sound recording of the hearing of 12 February 2019 and an informal transcript of part of that recording, which she produced, amounting to some 15 pages.
Distilling all of ZLU's material, as best we can, we have identified two grounds of appeal which could be categorised as raising an error of law, as follows: 1. That there was no evidence to support the finding that there was a sensible and unacceptable risk that ZLV was being financially exploited. (ground 6); 2. That the Tribunal failed to take into account the views of ZLV (ground 7).
As for the remaining grounds of appeal, for which we are of the view leave to appeal would be required, we have identified those as follows: 1. That the Tribunal failed to take account of relevant evidence (ground 1 and 2); 2. That the Tribunal's reasons for decision contained inaccuracies (ground 3).
Ground 4, the allegation that the reasons for decision issued by the Tribunal failed to include details or conversations that occurred in the hearing, simply misconceives the purpose of reasons. The NCAT Act sets out the matters to be included in a written statement of reasons. Section 62(3) of that Act provides: (3) A written statement of reasons for the purposes of this section must set out the following: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, (c) the reasoning processes that lead the Tribunal to the conclusions it made.
There is no obligation on the Tribunal to record all the evidence it receives in its reasons. The reasons are not intended to be a transcript of the proceedings. Accordingly, this alleged ground of appeal is misconceived.
Similarly, we concluded that ground 5, the allegation that the sound recording of the hearing of 12 February 2019 had in some way had been edited has no merit.
As was evident in ZLU's written submissions and subsequently confirmed by her at the hearing, ZLU asserted that had not only parts of the Tribunal's sound recording been deleted, but further, that many parts of the sound recording had not actually occurred at all. For example, ZLU alleged that the Tribunal members had recorded questions to her at a time subsequent to the hearing, and then had her voice digitally manipulated to have her providing a response that never was given by her at the hearing.
We asked ZLU who she believed created this edited version of the sound recording and what their motivation in doing so may have been. ZLU suggested to us that it may well have been the panel of the Tribunal who heard the matter on 12 February 2019 with a motivation of ensuring that the sound recording supported their reasons for decision and ultimate orders.
ZLU did not provide any independent assessment of the sound recording to seek to verify her claims. ZLW, who participated in the hearing the subject of the appeal, submitted that the sound recording that was made available by the Tribunal to the parties was an accurate reflection of what occurred, stating as follows in her submissions, making comment on the informal transcript provided by ZLU: Time constraints will not allow me to try to interpret exactly what was said but it is apparent that errors are made throughout the transcript. The sound recording however, states exactly what occurred verbatim and there were no omissions or editing. I was present at the Hearing, in person, held on 12 February 2019 and I conclude that the sound recording is correct.
We reject ZLU's allegation that the sound recording of the hearing had been edited. It is as unfounded as it is extraordinary and misconceived.

Ground (6) - That there was no evidence to support the finding that there was a sensible and unacceptable risk that ZLV was being financially exploited

ZLU submitted that there was no evidence before the Tribunal which permitted it to make a finding that "[ZLU] was exploitative". In support of her position she referred us to [69] of the Tribunal's reasons which stated: No positive finding of exploitation has been made against [ZLU].
In her submissions of 25 March 2019, ZLU stated: If the Tribunal wants to refer to [ZLU] as "exploitative" they can provide proof and evidence based on facts. It's unlawful to provide a "made-up" written statement that doesn't match the hearing on 12th February (they don't event match the edited sound recording). The written statement, on numerous occasions, in particular paragraphs 42, 44, 46, 59, 61, 62, 63 refer to explanations put forward by [ZLU] and that they were unconvincing. These never happened at all and the things that were explained to them have been either completely edited out or just ignored. Even the deleted sound recording contradicts their claims.
In her further submissions of 13 July 2019, ZLU went on to state: Tribunal (sic) have referred to [ZLU] as "financially exploitative" and that [ZLV] is at risk of financial exploitation from [ZLU], without any evidence. (paragraph 63) This is defamation / slander. Tribunal (sic) have deliberately ignored statements in the supporting documents outlining the fact that [ZLU] has done property maintenance for the past 28 years. They have edited out complete conversations. They have also edited out of the sound recording [ZLU]'s explanation of "why would she be doing property maintenance, reporting brickwork, during her holidays from work to save her mother money, if she was acting in her own interests."
From the various submissions on this point we understand ZLU's main contention to be that there was no evidence to support the Tribunal's finding as to exploitation, because ZLU had provided detailed explanations as to the expenditure of her mother's funds (most of which she alleged had been edited from the Tribunal's sound recording). She also contended that the Tribunal purposely failed to ask appropriate questions of her or ZLV as to ZLV's expenditure which, had they of done so, would have allayed any concerns of exploitation.
The evidence the Tribunal relied upon in making its findings in regards to the risk of exploitation to ZLV is summarised at [41] to [47] in the reasons for decision as follows: 41 In relation to financial management, the Tribunal asked [ZLV] how many bank accounts she had. She looked to [ZLU] for support and was told two. The Tribunal asked her which banks her accounts were held at. She said that she thought the [name of a bank]. She appeared to be guessing. The Tribunal is aware from the statements produced that the accounts are held with [a bank] and [another bank]. [ZLV] was able to tell the Tribunal that she receives an age pension, but did not know how much she gets per fortnight. On the last occasion, she told the Tribunal that she thought it was around $33. She said that the pension must go into her bank account, and that she thought she only had one account but couldn't recall the name of it. She said that she does not go to the bank herself but sends [ZLU] or [ZLX]. She thought there was card access to her account but she did not know where the card was. When asked about bills, she said that she knew they got paid but was not sure how. She said that she supposed her daughters get money out of her account and pay the bills. She said that she has some money at home for household expenses, and that she gets regular money out for that purpose - '$300 or something', she said. The Tribunal understood her to mean that her daughters get the money out for her. When asked, she said that her daughters pay some of the bills, but was not able to provide details. The Tribunal asked her about the statements for her [bank] account which the Tribunal had before it. It first asked her about the PIN for her card. She started to say that she had it written down, but [ZLU] corrected her. The Tribunal noted that the bank statement for the period 17 January to 17 July 2018, being the most recent full statement before the Tribunal, indicated that in early March 2018, $5,000 was withdrawn from her account via a handybank [ATM] in $1,000 lots over a two-week period [5 March to 15 March]. She could not recall what that money had been for, or why it had been withdrawn in that way. The Tribunal noted that there were further similar series of withdrawals: $2,000 over one week [22 February to 28 February 2018] in lots of $1000; $2,600 over two weeks [9 April to 26 April 2018] in lots of $900, $900 and $800; $1,800 over 10 days [29 May to 8 June 2018] in lots of $900; $1,800 again over two weeks [22 June to 5 July 2018] in lots of $900. The total of these large cash withdrawals was $13,200 over about 4½ months. The Tribunal notes now that another $2,000 had been withdrawn in 10 days [23 January to 31 January 2018] in $1,000 lots, bringing the total to $15,200 in about 5½ months. Over that period, the balance in the account reduced from approximately $6,700 to approximately $60. Through the period, the account was receiving [ZLV]'s pension payments of approximately $900 every fortnight. 42 [ZLU] told the Tribunal that [ZLV] always asks her how much is in her account and asks her to take the money out. She said that her mother never lets money stay in her keycard account. She said that the money is kept aside at home for maintenance costs for the house or for major bills such as rates and insurance. She added that the rates and insurance are due in February/March. [ZLV] was not able to tell the Tribunal where money was kept at home. She said that she could not recall. 43 In answer to the Tribunal's questions, [ZLU] said that she receives income from employment and also rental income. She also told the Tribunal that Ms [ZLX] receives rental income. 44 [ZLU] then pointed to a large quote for electrical work for the property that she had included with the material she had sent in. The quote was for $9,636. The Tribunal noted that the quote was dated January 2017, at least a year before the period being discussed. 45 The Tribunal noted that there had been a substantial balance in the account [of between $5,000 and $8,000] throughout the period July 2017 to early 2018, but that balance was then reduced between January and July 2018 as discussed above. 46 [ZLU] said that at the point that the balance started reducing, [ZLV] would have asked her about the balance and asked her to get it out. She said that she thought that [ZLV] has $7000 around the house at present. She noted again that the rates and insurance are due soon. The Tribunal asked her whether she considered that it was safe to keep such amounts at home. She said that she is happy that the money is secure as they are there. She then said that she has suggested to [ZLV] to keep the money in her [other bank] account, but said that on hot days [ZLV] can have trouble getting to the bank. She said that her mother makes withdrawals. She told the Tribunal that [ZLV] makes decisions about where her money is kept and they just assist with the practicalities. She said that they act on [ZLV]'s wishes, and do what she says. Notwithstanding [ZLV]'s dementia, she said that [ZLV] can make her own decisions. She confirmed they haven't acted under the enduring power of attorney. She also confirmed that she is happy where the money is at the moment, and that she has done as [ZLV] has requested. 47 The Tribunal asked [ZLU] about a trip she had had back to England in 2017. She said that she had been in England from the beginning of April 2017 to the end of September that year. The Tribunal noted that there was a distinct difference in the pattern of use of [ZLV]'s [bank] account in the period that [ZLU] was away. The Tribunal noted that in that period withdrawal amounts tended to be $500 at irregular intervals, and the withdrawals were made through a bank branch, not through an ATM. The overall level of withdrawal was consistently lower during that period with a consequential increase in the balance in the account. During that period, the balance went from under $1,000 to over $7,000. In answer to the Tribunal's questions, [ZLV] said that she did not remember going to the bank herself in that period, and she may have been sending [ZLX]. The Tribunal also asked her whether she had an issue with keeping money in a bank. She said that she thought she did keep money in the bank, and she supposed that it was good to keep it there. She said that if she has any money hidden at home, she does not know where it is. She confirmed that she had no issue with keeping money in the bank, and said that you can get it from there when it is needed.
Noting that we have rejected ZLU's allegations as to the editing of the Tribunal's sound recording of the hearing, from a review of the sound recording, and the documents available to the Tribunal at the time of the hearing, the Tribunal's reasons accurately summarise the evidence that was before them. That evidence was then relied upon by the Tribunal to conclude as follows: 58 The Tribunal is also satisfied that there is a need for another person to manage [ZLV]'s affairs and that it is in her best interests for a financial management order to be made. 59 Analyses of [ZLV]'s [bank] account statements revealed unusual patterns of withdrawal of significant sums of money. Explanations were put forward by [ZLU] that did not match the objective evidence. [ZLU] told the Tribunal that [ZLV] did not like money being held in her [bank] account that was operable by keycard. She said that [ZLV] would ask her how much was in the account, and, when told, would request it be withdrawn apparently to be kept at home in cash. The Tribunal asked [ZLV] about her attitude to keeping money in the bank. She did not offer any particular attitude that she preferred to keep her money at home in cash. That is, her evidence did not corroborate [ZLU]'s explanation that it was at [ZLV]'s regular requests that money was withdrawn to be kept in cash at home. In the Tribunal's view, based on its interactions with [ZLV and her evidence, it was quite unlikely that ongoing requests initiated by [ZLV] were behind the withdrawals. The Tribunal did not accept that explanation. Further, the pattern of withdrawals in 2018 (see paragraphs 41, 42, 45 and 46 above) did not match the explanation given. The account was not reduced to a minimal amount regularly in response to any claimed requests from [ZLV], but rather reduced over some months from a sizeable balance to a minimal amount. That reduction occurred by way of grouped withdrawals of multiple amounts of $800, $900 or $1,000 over short periods through an ATM. A total of around $15,000 was withdrawn over a period of 5½ months. 60 Further, while [ZLU] was in England for some months in 2017, the pattern and extent of withdrawals from [ZLV]'s [bank] account was quite different to the pattern otherwise. First, in that period, the withdrawals were made over the counter at the bank branch and not by card through an ATM. Secondly, during that period the account balance built up significantly. Amounts tended to be withdrawn in smaller $500 lots at irregular intervals and at a much lower overall rate than either before or after that period. It is quite apparent, during that period, that [ZLV] was not keeping the balance low in favour of holding money at home in cash. [ZLU] also told the Tribunal that [ZLV]'s pattern of withdrawal from her account hadn't changed over the last 10 years. Again, the objective evidence of the bank statements, including for the period [ZLU] was in England, told a different story. 61 When the Tribunal was raising these matters during the hearing, [ZLU] referred to maintenance costs for the home and pointed to a significant quote for electrical work in January 2017 (a year earlier). She was suggesting that the withdrawn amounts were for maintenance and other expenses, including rates and insurance. The implication at that point was that those amounts were being met by [ZLV]. However, in other material before the Tribunal (see her letter to the Tribunal dated 12 August 2018 at pages 5 and 6), [ZLU] seems to indicate that maintenance costs are shared. There is the possibility of inconsistency in this regard. The Tribunal also notes at this point that there is nothing to suggest that any rent is paid by [ZLU] or Ms [ZLX] to [ZLV] for their lodging, or that there is some equivalent payment in kind beyond the claimed assistance with maintenance or some sharing of utility expenses. 62 Ultimately, the Tribunal could not be satisfied on the evidence that [ZLV]'s financial affairs were being managed in her interests. The Tribunal was not able to accept the explanation [proffered] by [ZLU] that she was just acting on instructions from [ZLV], given the changing withdrawal pattern when she was away, and the time taken after her return for the account balance to be whittled away. The explanations [proffered] did not fit the objective evidence. The Tribunal was also concerned that the whole of [ZLV]'s pension was being expended when she was supposedly sharing the household expenses with two of her daughters. 63 In all of the circumstances, the Tribunal could not be satisfied that [ZLV] was not being exploited. She was no longer able to manage her own affairs. She was clearly vulnerable and unable to protect herself. There were matters relating to her affairs that raised serious concerns, and in respect of which the explanations [proffered] were unconvincing. The Tribunal is duty bound in exercising functions under the Act, such as determining financial management applications, in respect of persons with disabilities, like [ZLV], to treat their welfare and interests as the paramount consideration. It is also bound to observe the principle that such persons should be protected from abuse and exploitation. The paramount issue to be decided on the application is whether the making an order is in the interests of the welfare of [ZLV]. In the present circumstances, the Tribunal must determine whether on the evidence there is a risk of financial exploitation occurring unless an order is made, and the magnitude of that risk. The Tribunal considered, based on the evidence, that there was a sensible and unacceptable risk that she was being exploited (see M v M [1988] HCA 68). Accordingly, in the Tribunal's view, it was in [ZLV]'s best interests for a financial management order to be made in respect of her estate to protect her welfare. In the circumstances, the enduring power of attorney could not be relied upon to reduce the risks to [ZLV]'s estate.
It is noteworthy that the Tribunal did not make a positive finding that ZLU had exploited her mother, as she contended. The relevant finding that the Tribunal did make was that there was a sensible and unacceptable risk that ZLV was being exploited. There is an important difference between the two concepts, particularly in relation to the exercise of the Tribunal's protective jurisdiction in the Guardianship Division.
The general principles in s 4 of the Guardianship Act are a statutory expression of the parens patriae protective jurisdiction: C v W [2015] NSWSC 1774 at [90]. The purpose of the protective jurisdiction was elaborated upon by Lindsay J in IR v AR [2015] NSWSC 1187 at [45] to [49]: 45 Upon an exercise of protective jurisdiction, whether directed towards protection of the estate of a person incapable of managing his or her affairs or protection of the person of a person in need of a guardian, there is of necessity an element of risk management. 46 An exercise of protective jurisdiction, whether by NCAT or the Court, is governed by the purposive character of the jurisdiction. 47 That purpose is the protection of those who (whether through age or disability) lack the capacity to take care of themselves: Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) (1992) 175 CLR 218 at 258-259, citing Wellesley v Duke of Beaufort (1827) 2 Russ 1 at 20; 38 ER 236 at 243; Wellesley v Wellesley (1828) 2 Bli NS 124 at 131; 4 ER 1078 at 1081 and Re Eve [1986) 2 SCR 388 at 407-417; (1986) 31 DLR (4th) 1 at 14-21. The general law, in this respect, provides a template for the legislation governing the management of protected estates and the guardianship of persons. 48 Thus the Guardianship Act provides, in section 4, a statement of "general principles" that govern decisions made under the Act. The primary principle, of which each other stated principle is an elaboration, is that "the welfare and interests" of a person in respect of whom jurisdiction is to be exercised "should be given paramount consideration". Clause 5 of schedule 6 to the Civil and Administrative Tribunal Act 2013 provides that NCAT, when exercising its functions for the purposes of the Guardianship Act, is under a duty to observe the principles referred to in section 4 of that Act. The NSW Trustee and Guardian Act has a similar statement of "general principles" in section 39. 49 The statement of "general principles" found in each of the Guardianship Act and the NSW Trustee and Guardian Act is based upon the "welfare principle" long held to have governed an exercise of the Court's inherent protective jurisdiction: Holt v Protective Commissioner (1993) 31 NSWLR 227 at 238B-C and 241A-B and F-G.
Section 4(g) of the Guardianship Act requires the Tribunal, and everyone else exercising functions under the Guardianship Act, to observe that "…[the subject person] should be protected from neglect, abuse and exploitation".
There is no statutory obligation on the Tribunal to make definitive findings on factual allegations of exploitation, neglect or abuse in exercising the jurisdiction allocated to it by the Guardianship Act. To conclude otherwise would be a misreading of s 4(g) of the Guardianship Act. Positive findings of this kind might be available, but are not necessary when determining an application arising under the Guardianship Act.
It would be inappropriate to demand that the Tribunal find, in a definitive sense, that abuse or exploitation has in fact occurred. Such a requirement would inappropriately limit the Tribunal's protective jurisdiction. Instead, the Tribunal is to be concerned with protecting the person the subject of the application from that risk - whether on the basis of the subject person's possible previous exposure to neglect, abuse and exploitation, or on the basis of other findings such as their current financial status, vulnerability, or a relationship which might foreseeably expose the subject person to an undue risk of neglect, abuse or exploitation.
Section 4(g) of the Guardianship Act requires that the Tribunal protect the subject person from potential risks, and to that end, exercising its statutory functions for the purpose of mitigating or eliminating those risks. In the matter below, the Tribunal was appropriately evaluating whether to exercise the discretion to make a financial management order over ZLU's estate based upon whether she was the subject of a sensible and unacceptable risk that she was being exploited, not that she had necessarily actually been exploited.
We turn now to the specific question of law as identified - was there no evidence to support the finding made by the Tribunal that there was a sensible and unacceptable risk that ZLV was being financially exploited?
It is an error of law to make a finding of fact for which there is no evidence: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-6; [1990] HCA 33; Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [91].
A finding of fact which is supported by at least some evidence does not reveal an error of law, even if it was made by ignoring the probative force of the evidence which supports a different finding of fact: Azzopardi v Tasman UBE Industries Pty Limited (1985) 4 NSWLR 139 at 155-156 (Glass JA). Where judgment is formed on the basis of conflicting indicators, it will be difficult, if not impossible, to establish a "no evidence" ground of review: L & B Linings Pty Limited v WorkCover Authority of NSW [2012] NSWCA 15 at [34] (Basten JA).
There was evidence before the Tribunal that justified it reaching the conclusion that it did as to ZLV being at risk of exploitation. The Tribunal's interactions with ZLV indicated that she personally had little understanding of her financial circumstances and she was unable to explain in any meaningful way a series of withdrawals as reflected on her bank statements. It was also open to the Tribunal to find, as it did, that the explanations proffered by ZLU for the expenditure as outlined on ZLV's bank statements were unconvincing and not fitting with the objective evidence available to them at that time.
This ground of appeal is rejected.

Ground (7) - That the Tribunal failed to take into account the views of ZLV

ZLU asserts that the Tribunal was bound to have regard to the views of ZLV, but failed to do so. Specifically, she asserts that the Tribunal, in making the orders that it did, ignored the views of ZLV, which she summarised in her submissions as follows: Tribunal has ignored what [ZLV] indicated in her letter and legal instructions provided in the supporting documentation. [ZLV] has clearly indicated that she wants her daughters [ZLU] and [ZLX] to manage her affairs.
The only documentary submission before the Tribunal, attributed to ZLV, was a letter dated 8 August 2018. That submission, stated relevantly in part: I don't have a decision making disability and I don't need anyone else making decisions for me. I manage my own financial affairs and I don't require a guardian either.
We were unable to identify any other documentary submissions where ZLV clearly stated that she wanted ZLU and ZLX to manage her affairs. Nor did the sound recording of the hearing of 12 February 2019 reveal any statement to this effect on the part of ZLV.
On the issue of "legal instructions" as to ZLV's wishes referred to in the grounds of appeal, we understood this to be a reference to the Enduring Power of Attorney dated 9 November 2017. In that instrument ZLV purported to appoint ZLU as her attorney, and ZLX as a substitute attorney, which, on its face, could be interpreted as an indication of ZLV's wishes as to who should manage her estate, if she were unable to manage her estate herself, at the time the document was executed.
As noted earlier, it is the duty of everyone exercising functions under the Guardianship Act, with respect to persons who have disabilities, to observe the principles listed in s 4 of that Act, which relevantly include: (a) the welfare and interests of such persons should be given paramount consideration … (d) the views of such persons in relation to the exercise of those functions should be taken into consideration … (g) such persons should be protected from neglect, abuse and exploitation
The statement at the commencement of s 4 of the Guardianship Act, "it is the duty of everyone exercising functions under this Act ... to observe the following principles" makes plain that it is mandatory for a person exercising functions under the Guardianship Act to take into account the principles listed in s 4 of the Guardianship Act. In P v NSW Trustee and Guardian [2015] NSWSC 579 at [53]-[58], Lindsay J pointed out that the obligation to have regard to those principles is reinforced by cl 5(1) of Sch 6 to the NCAT Act, which provides that, when exercising its "Division functions for the purposes of the Guardianship Act 1987", the Tribunal is under a duty to observe the principles set out in s 4 of the Guardianship Act.
It would have provided greater transparency to the Tribunal's reasoning process if the Tribunal's reasons clearly recorded what views they considered they had received from ZLV on the application before them (if any) and how they had dealt with those views in light of the requirement imposed by s 4(d) of the Guardianship Act.
However, we are not satisfied that such lack of transparency means that the Tribunal failed to comply with the duties imposed upon it or that the decision below should otherwise be disturbed upon appeal.
The best evidence that was before the Tribunal which supported the view that ZLV preferred her daughters, ZLU and ZLX, to manage her affairs over any other possible arrangement, was the Enduring Power of Attorney of 9 November 2017. The Tribunal was clearly cognisant of the existence of that instrument and of the appointments made by such instrument stating at [63] of its reasons: Accordingly, in the Tribunal's view, it was in [ZLV]'s best interests for a financial management order to be made in respect of her estate to protect her welfare. In the circumstances, the enduring power of attorney could not be relied upon to reduce the risks to [ZLV]'s estate.
On the basis of the Tribunal's findings of fact, it can reasonably be inferred that it determined that the principles that ZLV's welfare and interests should be given paramount consideration, and that she should be protected from neglect, abuse and exploitation, should be afforded greater weight in the balance against, in this case, a competing principle, being consideration of the views of ZLV.
It can be inferred from the Tribunal's reasons that the decision made to make a financial management order over ZLV's estate turned not on ZLV's current or past views, but on the conclusion reached by the Tribunal that continued management of ZLV's estate, either informally or under the instrument appointing an enduring attorney, would not be in her best interests. Section 4 of the Guardianship Act does not require the Tribunal to make a decision consistent with the views of ZLV. The Tribunal is required to have regard to all relevant factors in s 4 of the Guardianship Act and then balance these factors accordingly. The weight and relative importance given to each factor was a matter for the Tribunal to determine. It is implicit from the reasons that in deciding to exercise its discretion to make a financial management order over ZLV's estate, the Tribunal gave particular weight to the protectionist principles embodied in ss 4(a) and 4(g) of the Guardianship Act.
We reject ZLU's contention that the Tribunal failed to have regard to the views of ZLV as required by s 4 of the Guardianship Act. There is no merit to this ground of appeal.

Remaining Grounds requiring leave to appeal

We turn now to the remaining Grounds of Appeal, which, as previously outlined, we considered did not raise questions of law and therefore require leave.
In most cases it is appropriate to grant leave to appeal only in matters that involve: issues of principle; questions of public importance or matters of administrational policy which might have general application; an injustice which is reasonably clear; a factual error that was reasonably arrived at and clearly mistaken; or the Tribunal had gone about the fact finding process in such an orthodox manner were in such a way that it was likely to produce an unfair result so that would be in the interests of justice for it to be reviewed: Collins v Urban [2014] NSWCATAP 17 at [84].
Grounds 1 and 2 of ZLU's appeal we understood to be an allegation that the Tribunal had failed to take account of relevant evidence in reaching its decision. Specifically, ZLU contended that the Tribunal had failed to give weight or consideration to "[ZLW]'s illegal access to [ZLV]'s bank account as well as theft from [ZLV]", and also ignored ZLU's maintenance care of ZLV for the past 33 years.
Of the first matter raised, from the extensive submissions filed by ZLU, it seemed that ZLU alleged that ZLW had accessed their mother's account by way of obtaining bank statements on her accounts at a time when she was aware she did not have the authority to do so. We also understand that she alleges that ZLW attended the property where ZLU and ZLX reside together with ZLV in 2017 and removed some chattels which belonged to ZLU which was seemingly part of a disagreement over the distribution of the estate of ZLV's former-husband.
Even if the Tribunal had made a positive finding in relation to ZLU's allegations against ZLW, it was unclear to us which element of the legislative test provided for in s 25G of the Guardianship Act these matters went to, and therefore, how such matters could have, in any way, altered the Tribunal's decision. ZLW did not seek appointment as the manager of her mother's estate so an analysis of her character or past actions was not relevant. If anything, the allegations, if proven, would most likely have added greater justification to why the order they ultimately made was necessary to protect ZLV from the risk of financial exploitation.
Turning to ground 3, ZLU contended that the Tribunal's reasons were "full of false statements - not supported by supporting documents and/or the sound recording (edited or otherwise)".
In support of this ground, ZLU provided 23 pages of submissions where she criticised or challenged the majority of the paragraphs of the Tribunal's reasons which outlined the evidence before it and which explained why the decision was made to appoint a financial manager for ZLV. A review of these arguments did not reveal to us any further concerns as to the Tribunal's reasoning process or ultimate conclusion which had not otherwise been addressed under ZLU's other grounds of appeal. In reaching this view, we are mindful that many of the allegations of "false statements" made by ZLU are in many cases based on ZLU's rejected proposition that the sound recording of the hearing of 12 February 2019 had been edited.
We are satisfied that none of the indicative factors identified in Collins v Urban are present in relation to each of these remaining grounds of appeal which would justify us granting leave to ZLU to appeal. Leave for each ground is refused.

Orders

The Appeal Panel orders the following: 1. Leave to appeal is refused. 2. 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: 04 October 2019

At a glance

Court

Decision date

Before

Source

Judgment (13 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (15)