ZMZ v NSW Trustee and Guardian

Publication of the names of the parties

1. 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 Civil and Administrative Tribunal Act 2013 (NSW) (CAT 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 CAT Act. Nonetheless, because of the sensitive nature of the matters raised in these proceedings, we will not refer to the parties by name but use the assigned pseudonyms as previously noted.

Participation

1. By the time of the 2019 review hearing, ZNA had been diagnosed with advanced dementia and required 24-hour supervision and care. Due to the extent of her cognitive impairment, ZNA did not take part in either of the hearings in 2015 and 2019. Nor did she take part in this appeal hearing. None of the other parties took issue with this and we proceeded with hearing the appeal in ZNA's absence.
2. We also note for the sake of completeness that the NSW Trustee and Guardian did not take part in the appeal.

The appeal

1. The Notice of Appeal set out the following grounds: (1) There was already a private Enduring Power of Attorney (EPOA) put in place by [ZNA] while she still had capacity, it was only because of the high stress in 2015 that [ZNA'S husband] forgot there was such an arrangement in place and required a financial management order. (2) The private EPOA shows the wishes and intentions of [ZNA], specifically that she wished for her Husband to have control of her finances in the event of her incapacity. (3) An order of the tribunal should never override a private law arrangement, except where there is cause for the EPOA to be overridden, and that has never been alleged nor proven against [ZNA'S husband], moreover, he has presented many references of his good character which were not considered at the Hearing. (4) The failure to revoke or amend the financial management order in the context of the private and valid EPOA is in effect a decision to allow a decision of the tribunal to override the private law intentions without having any grounds or basis, nor a hearing on that basis to allow [ZNA'S husband] the ability to defend himself. (5) Finally, the hearing was rudely interrupted and concluded without [ZNA'S husband] being allowed due process as he was denied the ability to make full concluding submissions because the Sheriff was called into the proceedings as other interested parties were making threats and the proceedings were called to a premature end.
2. As the appellant was unrepresented, we assisted him to refine his grounds of appeal following further clarification by him in his written and oral submissions: see Neill v Nott [1994] HCA 23. As a result, ZNA's husband confirmed that his appeal grounds were that: 1. ZNA's husband was denied procedural fairness, in that his ability to make what he describes as "full concluding submissions" was cut off due to the disruption in the hearing caused by ZNA's son - the "Denial of procedural fairness" ground; and 2. The Tribunal failed to give sufficient weight to ZNA's views contained within the 2008 enduring power of attorney in which she appointed ZNA'S husband as her attorney - the "Sufficient weight" ground.
3. ZNA's son was the only other party who took an active role in the appeal. ZNA's son's position was that the Tribunal had not made any error in the way that it decided the review application and that the appeal should be dismissed.

Denial of procedural fairness

1. A denial of procedural fairness is a question of law: Italiano v Carbone [2005] NSWCA 177; Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 at [8]; John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13(4)].
2. Accordingly, ZNA's husband has a right to appeal on this ground and leave to appeal is not required: CAT Act, s 80(2)(a).
3. In written and oral submissions, ZNA's husband told us that in his view the Tribunal member could not control the hearing and that as a result, a sheriff was called and the hearing was cut short. Had the hearing below not been cut short, according to ZNA's husband, he would have emphasised to the Tribunal member the significance of the 2008 enduring power of attorney signed by his wife. ZNA's husband also said that he would have shown the Tribunal the original signed document. We understood ZNA's husband to submit that as the original of the 2008 enduring power of attorney is an important legal document that shows his wife's intentions in 2008, had he had the chance to show the original document to the Tribunal member, it would have led to a different outcome.
4. In the reasons, the Tribunal referred to this issue in the following terms: [13] [ZNA's son] found it difficult to control his emotions during the hearing and repeatedly interrupted the discussion causing me to give him several warnings about his behaviour and rendering the hearing chaotic at times. Towards the end of the hearing I clearly heard [ZNA's son] make a threat against [ZNA's husband] at which point I had no option but to eject him from the hearing and seek the assistance of the Sherriff's Officers to escort him from the building. [ZNA's son] sought to qualify what he had said with words to the effect that he had said "I could kill you...." rather than "I will kill you...". [14] I did not accept that to be the case and after I had directed [ZNA's son] and his wife and sister to leave the hearing room, due to my serious concerns I asked [ZNA's husband] and [the solicitor] to go into an adjoining conference room while I sought assistance. At that point [ZNA's husband] told me that an Apprehended Violence Order (AVO) was still in place. The statement from [ZNA's husband] attached to the application mentions at the bottom of page 2 and top of page 3 that an AVO was in place in 2015 where it was alleged by [ZNA's husband] that [ZNA's son] had "half strangled me to death". I note that I had no documentary evidence before me reflecting that a current AVO was in place but if that were the case [ZNA's son] should not have been in the same place or room as [ZNA's husband]. [15] Sherriff's Officer [name removed for publication] and his colleagues then intervened and escorted [ZNA's son] outside the building and returned to compile an official incident report and take statements and to ensure [ZNA's husband]'s safe departure from the building. [16] Prior to this incident I had indicated that the hearing would conclude with [ZNA's husband] making any final submissions he wished to put before me. However, given the event above, as it had turned out, this was not possible as I had terminated the hearing. [17] I then had to consider whether I should further adjourn the matter before making a decision. I decided against that for a number of reasons which follow. First, the matter had already once been adjourned on 1 May 2019. Second, [ZNA's husband]'s contentions and submissions were made clear to me by him at this hearing and are set out in detail in his application and the attached 5 page printed submission both received on 19 December 2018 (see further below in regard to the content) as well as the letter from his solicitor [name removed for publication] dated 9 May 2019. Finally, the guiding principal of the NSW Civil and Administrative Act 2013 in section 36 (1) is to facilitate the "just, quick and cheap" resolution of the real issues in proceedings that come before the Tribunal. Taking all those considerations into account I could see no benefit in further adjourning given that [ZNA's husband]'s position had been put to me and was manifestly apparent to me.

Discussion

1. The requirement to provide procedural fairness should not be considered in the abstract. Rather, it is a requirement to ensure that there is no "practical injustice" caused to the Appellant (Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6 at [37] (Gleeson CJ)).
2. Further, in the context of proceedings in the Guardianship Division, we need be mindful of the fact that the proceedings are not adversarial, in the traditional sense. Rather, they are an examination of the material and evidence before the Tribunal to facilitate a decision which will best promote the welfare and interests of ZNA.
3. Whilst a party has a right to be heard, that right is not unfettered, as evidenced by the right of the Tribunal to determine its own process and set limits on the time available to a party to give evidence and make submissions afforded by ss 38(1) and 38(6)(c) of the CAT Act.
4. What is required of the Tribunal is that it take such measures as are reasonably practicable to ensure the parties have a reasonable opportunity to be heard or otherwise have their submissions considered: CAT Act, s 38(5)(c).
5. Here, a reading of the reasons below, particularly at [17], makes it clear that the Tribunal member properly considered the issue of fairness to ZNA's husband and concluded that he had heard enough from ZNA's husband, in addition to his written submissions and written references, to ensure that he properly understood ZNA's husband's case.
6. Looking at the Tribunal's reasons below as a whole, we are not persuaded that error is established on this ground. The reasons make numerous, explicit references to the 2008 enduring power of attorney throughout and it is clear, when the reasons are read as a whole, that the Tribunal was cognisant of the significance of the 2008 enduring power of attorney as expressing ZNA's wishes and intentions at the time of its making. There is no suggestion that there was a challenge to the validity of the 2008 enduring power of attorney, merely because only a copy was in evidence before the Tribunal.
7. On that basis, whilst the disruption to the hearing was unfortunate, and no doubt upsetting to ZNA's husband, we are not satisfied that there was any practical injustice occasioned. Nor does it appear that the Tribunal needed to hear further from ZNA's husband to properly consider how to promote ZNA's welfare and interests or whether it would be in her best interest to revoke the order.
8. This ground is not made out.

Sufficient weight

1. The remaining ground that the Tribunal failed to give sufficient weight to ZNA's views contained within the 2008 enduring power of attorney in which she appointed ZNA's husband as her attorney, does not allege an error of law. As a result, ZNA's husband requires leave to appeal on this ground: CAT Act, s 80(2)(b).
2. The principles which govern the granting of leave to appeal pursuant to s 80(2)(b) of the CAT Act are set out in Collins v Urban [2014] NSWCATAP 17 at [84], as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) 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, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; …
3. The cases of SAB v SEM [2013] NSWSC 253, [8]-[10] (White J); C v W [2015] NSWSC 1774, [44]-[46] (Lindsay J); P v NSW Trustee and Guardian [2015] NSWSC 579, [191] (Lindsay J) all set out additional considerations for the grant of leave in the context of proceedings in a protective jurisdiction, which we have considered but will not repeat here.
4. In written and oral submissions, ZNA's husband told us that the 2008 enduring power of attorney was witnessed by a solicitor at the time and was an important legal document. ZNA's husband submitted that he and his wife had managed their own finances, there was no conflict between them, and this was shown by the documents they each signed in 2008 in which they appointed each other as their attorney. He said the fact that ZNA made her wishes clear at the time the document was signed, their long marriage and the character references submitted at the hearing below show that there was no reason for the financial management order to continue. Had the Tribunal member given the 2008 enduring power of attorney proper weight, according to ZNA's husband, the 2015 financial management order would have been revoked.
5. The Tribunal considered the issues relevant to the exercise of the discretion under s 25P of the Guardianship Act as follows: [35] Revocation on the grounds of best interests involves, amongst other things, broad considerations which include the available options to manage a person's financial affairs less formally, the size of the estate and the possibility of minimising unnecessary costs to a modest estate. [36] [ZNA]'s estate should be uncomplicated given she has been a resident of the ACF since 2015 and her living circumstances have been settled since then. [ZNA's husband] wants to sell the [property in regional NSW] and move closer to the ACF. He does not want the NSW Trustee to have any role in that transaction. His plans appear to have changed since he lodged this application in December 2018. [37] [ZNA's husband]'s submissions appeared at face value to be reasonable. However I had very serious concerns about the overt conflict between [ZNA]'s children and [ZNA's husband]. [38] For reasons which are not entirely clear [ZNA's husband] had overlooked the EPA at the 2015 hearing when he himself had made the applications. Hence [ZNA]'s estate has been under management of the NSW Trustee for the major part of the past 4 years. The Tribunal had determined that it was in [ZNA]'s best interests for the NSW Trustee to be the manager because of the conflict that was apparent at the time of the decision. As noted above significant conflict clearly persists. [39] On [ZNA's husband]'s own evidence (see paragraph 25 above) the situation of conflict was at such a level that he had sought the protection of an AVO in the past and submits that an AVO is still in place. This was after [ZNA'S son] had allegedly attempted to strangle him. As noted at paragraph 25 [ZNA's husband] himself expected more "trouble" from [ZNA's son] as a result of this application. He was correct in that prediction given that [ZNA's son] in my presence threatened to kill [ZNA's husband] as I have recorded above. … [41] It has been previously held that conflict per se between parties should not necessarily be the reason to exclude a private person from carrying on the role of either informal or formal management for an incapable person. There are situations however, in my view, where the level of conflict is so pervasive and of such negative impact that that outcome cannot be avoided in the best interests and for the welfare of the subject person which is paramount (see below paragraph 43 below). … [43] Relevantly subsections 4 (d) and (e) of the [Guardianship] Act direct the Tribunal to take into account the views of the person as well as the importance of preserving the person's family relationships and cultural and linguistic environments. Subsection 4 (a) directs the Tribunal to give paramount consideration to the welfare and interests of the person. … [45] Clearly [ZNA's husband]'s views are that he wishes to be responsible for managing his wife's financial affairs. I also accept that in 2008 [ZNA] had nominated [ZNA's husband] as her enduring attorney. Equally however family relationships issues have in the past been important and should remain important to [ZNA]. [ZNA's husband] in his statement referred to the fact that [ZNA] had always cared for her children despite the problems (see paragraph 26 above). I determined that this was one of those matters where the impact of conflict outweighed the other considerations. … [47] For the reasons noted above I was of the view that the NSW Trustee, as an independent manager, was best placed to resolve the ongoing conflict issues and to bring the advantages of a dispassionate and neutral approach in this overt family conflict and the divided views as to the best interests of [ZNA]. The NSW Trustee also brings expertise and experience in managing estates and the security provided to an estate against loss. [48] Ultimately after having considered all the circumstances of this matter and for the reasons set out above I was not satisfied that it is in the best interests of [ZNA] that the management order should be revoked.

Discussion

1. When exercising functions for the purposes of the Guardianship Act, including when considering whether to revoke a financial management order under s 25P of that Act, the Tribunal is under a duty to observe the principles set out in s 4 of that Act, giving primacy to the welfare and interests of the protected person: C v W [2015] NSWSC 1774 at [82]-[100]; P v NSW Trustee and Guardian [2015] NSWSC 579 at [320].
2. The Tribunal is also under a duty to take into consideration the views of the person who is the subject of a financial management order: Guardianship Act, s 4(d).
3. Whilst ZNA was unable to take part in the 2015 or 2019 hearings due to the extent of her cognitive impairment, the reasons for the decision under appeal make clear that the 2008 enduring power of attorney which reflected ZNA's wishes was considered by the Tribunal.
4. Considering the paragraphs of the Tribunal's reasons referenced above, in exercising its discretion to not revoke the financial management order the Tribunal clearly weighed the existence of the 2008 enduring power of attorney and ZNA's views as reflected in that document against other factors it was bound to consider under s 4 of the Guardianship Act. The Tribunal undertook a balancing exercise and considered the other written evidence and the evidence and submissions at the hearing. The Tribunal below expressly referred to the fact that the 2008 enduring power of attorney gave effect to ZNA's wishes at that time but gave greater weight to other considerations, in accordance with the s 4 principles of that Act, to determine that it was not in ZNA's best interests for the order to be revoked.
5. Noting that the Tribunal appears to have taken only relevant issues into account in the exercise of its discretion, and weighed those issues to reach a conclusion that was clearly open to it, we are not satisfied that is appropriate to give leave to appeal on this ground.
6. Looking at the decision from the prism of ZNA's welfare and interests, which remain protected by the financial management order, it cannot be said that the decision of the Tribunal involves an issue of principle; a question of public importance which might have general application or an injustice which is reasonably clear.
7. Leave to appeal on this ground is refused.

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

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 10 February 2020 - Paragraph 25 typographical error corrected 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: 10 February 2020