ZNX v ZNY

NCAT Appeal Panel|2020-01-20

REASONS FOR DECISION

This is an appeal against a decision of the Guardianship Division of this Tribunal made on 21 August 2019, which made the estate of the person who has been de-identified as ZNY in the appeal subject to management and committed management of the estate to the New South Wales Trustee and Guardian (NSW Trustee).
We conducted the appeal on 20 January 2020 and announced our decision to: 1. Refuse leave to appeal; and 2. Dismiss the appeal.

Publication of the names of the parties

We now provide reasons for our decision, noting firstly that 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) which we will refer to as the NCAT Act. Being an official report of the appeal proceedings, that prohibition does not apply to these reasons for decision due to s 65(3) of the NCAT Act. Nonetheless, because of the sensitive nature of the matters raised in these proceedings, we have decided to order, pursuant to ss 65(1) (a),(b)&(c) of the NCAT Act that the publication of these reasons, or any part of them which includes any details that may identify the parties is prohibited.

Background to the appeal

ZNY is a 47-year-old man, diagnosed with an intellectual disability, who lives in a group home setting in regional New South Wales.
His mother, de-identified as ZNX, lives nearby but across the border into Victoria.
In the decision under appeal, on the application of ZNX the Tribunal made a financial management order for ZNY. Despite the fact that ZNX had proposed herself as financial manager, the Tribunal committed ZNY's estate to the management of the NSW Trustee.
ZNX has appealed that decision.
There is no dispute that ZNY is incapable of managing his financial affairs. Nor is there any dispute that there was a need for someone else to be appointed to do so and that it was in ZNY's best interests that an order be made: s 25G of the Guardianship Act 1987 (NSW) (the Act).
ZNX's challenge to the decision is limited to the identity of the appointed financial manager.

Participation in the appeal

It is also accepted that, as a result of his disability, ZNY was unable to participate in the appeal process, just as he did not participate in the hearing below. On that basis, the Appeal Panel appointed a separate representative for ZNY. Mr de Dassel, barrister, took the role as separate representative for ZNY and appeared and made submissions at the hearing, as did ZNX.
The NSW Trustee elected not to participate in the appeal.

The essential aspects of the decision of the Tribunal on 21 August 2019.

Having decided to make a financial management order in respect of ZNY's estate, the Tribunal, guided by the principles in s 4 of the Act, needed to apply s 25M of the Act, and: 1. appoint a suitable person as manager of that estate; or 2. commit the management of that estate to the NSW Trustee.
Unlike the position when the Tribunal appoints a guardian, the Tribunal does not need to be satisfied that there is no 'suitable person' available before appointing the NSW Trustee: contrast the combined effect of ss 15(3) and 17(1) of the Act in relation to the appointment of a guardian.
Notwithstanding that, the process of the Tribunal first considering whether a 'suitable person' is available for appointment has been described as a "sensible hierarchy" (Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227 at 238), given the readily apparent benefits to the person whose estate is to be subject to management in having an approachable, familiar and involved person as manager, with the lesser fees which apply to private financial management: ibid at 242.
In its reasons for decision, the Tribunal noted two issues which clearly impacted on its decision not to appoint ZNX as manager of ZNY's estate.
The first related to ZNX's evidence during the hearing that she had been bankrupt twice in her life and her evidence that she was discharged from the latest bankruptcy in May 2019.
The Tribunal found, at [24] of its reasons, that this was a "significant obstacle to her appointment".
The second issue referred to by the Tribunal in its deliberations as to whether ZNX was a suitable person and should be appointed as financial manager for ZNY, arose from evidence received from the house manager of the group home where ZNY lives. The effect of that evidence was that the house manager was concerned that, if appointed, ZNX intended to use a significant proportion of ZNY's savings to buy herself a new car. It is clear from a fair reading of the Tribunal's reasons that it accepted this evidence as indicating at least a significant risk that this would occur.
It is unclear whether ZNX acknowledged in the proceedings below that she intended to use ZNY's funds in that way, and despite being directed to provide a transcript of what was said at the hearing in the appeal, if it was relied on, ZNX did not do so. We infer that she did at least tacitly acknowledge that she intended to use ZNY's funds in that way, however, as the Tribunal recorded, at [26], ZNX's evidence that she informed the Tribunal that having a car would enable her to visit ZNY more frequently. Further, in [26] of the reasons, the Tribunal also recorded that "[ZNX] did not reply when asked by the Tribunal's presiding member whether she understood that a financial manager could not use funds under management for their own purposes."
Little turns on our uncertainty as to the evidence given to the Tribunal below on this issue in any event, as in submissions at the appeal hearing ZNX acknowledged that it was her intention to borrow $16,000.00 from ZNY's funds to buy a car for herself, if she was successful in the appeal and appointed financial manager for ZNY. ZNX submitted that she intends to pay the money back, but indicated no plan as to how and in what terms she would do so or any explanation for how she might afford to do so from her Centrelink income.

An Appeal commenced out of time.

The appeal was not commenced within time.
The Notice of Appeal records that ZNX received the Tribunal's reasons for decision on 16 September 2019. The Appeal was not lodged until 24 October 2019, some nine days beyond the 28 days allowed for filing the notice under Rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014.
Nonetheless, the delay was not great, these are proceedings where the Tribunal was concerned with the welfare and interests of ZNY, and there was no objection to or suggestion of prejudice in us allowing an extension of time for filing the Notice of Appeal under s 41 of the NCAT Act. We will do so.

An application to rely on new evidence

ZNX also sought to rely on new evidence in the appeal, being: 1. Evidence that her second bankruptcy was discharged automatically on 29 May 2017, and not in May of 2019 which is what she acknowledges that she told the Tribunal below; and 2. A statement consisting of five paragraphs, wherein ZNX explained the situation when she last became bankrupt, noting that it occurred at the end of a relationship with a former partner and because of debts which arose on her separation and the subsequent unexplained loss of her personal property.
There is commonly no reason to allow new evidence in an appeal. Here, though, the evidence was relevant to the considerations of the Tribunal below, there was no objection by the Separate Representative to us allowing the new evidence in the appeal and no prejudice alleged to any party in us doing so. Whilst it could not be said to be likely to have led the Tribunal below to a different result (Building Professionals Board v Hans [2008] NSWCATAP 13), it might at least be said to have possibly done so. Further, our focus in the appeal should be guided by the requirement on the Tribunal below to make a decision which gave paramountcy to promoting ZNY's welfare and interests. We also note that proceedings in the Guardianship Division are not, properly considered, disputes between the parties and that accepting the new evidence will allow us to consider whether, with the benefit of hindsight, it has been demonstrated that serious injustice has resulted or will, in fact, result from the exercise of the Tribunal's discretion: Squire v Rogers (1979) 27 ALR 330; (1979) 39 FLR 106 per Deane J, with whom Forster and Brennan JJ agreed, at [12].
On that basis, we allowed and accepted the new evidence in the appeal.

The Appeal

A party to proceedings of this nature may appeal, as of right, on a question of law. Otherwise, leave to appeal is required under s 80(2)(b) of the NCAT Act.
The Notice of Appeal raised only one ground, as follows: 1. The Tribunal gave undue weight to [ZNX's] previous bankruptcies and the allegations that she may use some of ZNY's money to buy a new car.
We should attempt to ensure that we understand the ground of appeal from the Appellant's material and submissions, in accordance with previous decisions of the Appeal Panel in matters such as Cominos v Di Rico [2016] NSWCATAP 5. Given that the decision which is the subject of the appeal was made in the context of ZNY's welfare and interests being paramount, we are satisfied that we should adopt a liberal approach to this task. There is, however, a proper limit to be set on this process, as expressed by Flick J in SZTOG v Minister for Immigration and Border Protection [2018] FCA 112 at [30] in that: … it is no part of the function of this Court [here the Appeal Panel] to review the reasons for decision of a primary judge, draft what may be arguable Grounds of Appeal and then proceed to resolve those Grounds. … For the Court to itself draft its own Grounds of Appeal and then resolve those Grounds is, with respect, a step too far.
It is sufficient, in our view, to note that a thorough review of the Notice of Appeal, the material filed by the Appellant with it and the Appellant's submissions both written and made orally at the hearing take the allegation of error by the Tribunal no further than the ground as drafted above.
It is not asserted or made out that the decision to commit ZNY's estate to management by the NSW Trustee was made without evidence (Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32), that the Tribunal asked itself the wrong question, took irrelevant considerations into account, or that there were mandatory considerations in its decision that it failed to engage with: House v The King (1936) 55 CLR 499.
There is similarly, and properly, no suggestion that the decision was not one which a reasonable panel of decision makers could have made (Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223) or that the Tribunal below gave excessive weight to a relevant factor of no great importance, such that the decision was manifestly unreasonable: Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 at [15d].
In short, there are no properly arguable grounds to find that the Tribunal erred on any question of law. On that basis, ZNX requires leave to appeal.

Leave to appeal

The particular considerations relevant to our granting leave in an appeal from the Guardianship Division are explained in a number of decisions: Collins v Urban [2014] NSWCATAP 17, P v NSW Trustee and Guardian [2015] NSWSC 579 and EB v Guardianship Tribunal [2011] NSWSC 767.
In Collins v Urban at [82] to [84], the Appeal Panel set out the circumstances where it is ordinarily appropriate to grant leave to appeal. The Appeal Panel noted that the Appellant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact, and set out a list of relevant factors which, if established, might indicate that a grant of leave is warranted. They include whether the appeal raises: 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.
In P v NSW Trustee and Guardian at [191] Lindsay J indicated that five qualifications should apply to the comments of the Appeal Panel in Collins v Urban, in the context of an appeal from the Guardianship Division. Of those, only four are relevant in appeals to the Appeal Panel (rather than to the Court). Those four qualifications are: 1. There is a need to take section 4 of the Act specifically into account, which was recognised in BPY v BZQ [2015] NSWCATAP 33 at [33]-[34]; 2. In deciding how to proceed in dealing with any challenge to a decision of the Guardianship Division, it is important to be mindful of a need, characteristic of the protective jurisdiction but reinforced by statute, to administer a protected estate without strife, in the simplest and least expensive way; with informality of procedure; and in a manner calculated to facilitate the just, quick and cheap resolution of the real issues in dispute; 3. Given the broad evaluative or discretionary content of most decisions made on an exercise of protective jurisdiction, guidance about what is or may be an error of principle may, in particular cases, be derived from House v The King; and 4. In reviewing an evaluative or discretionary decision of the Guardianship Division, it is necessary to make due allowance for the possibility that the Division's discretionary powers, in the exercise of protective jurisdiction, are unconfined except by the subject matter, scope and purpose of the Tribunal's jurisdiction.
In comments that we are satisfied are equally apposite to the conduct of appeals from the Guardianship Division to the Appeal Panel, in EB v Guardianship Tribunal [2011] NSWSC 767 at [194]-[199], Hallen AsJ (as his Honour then was) also noted the relevance for present purposes of the observations in Slinko v Guardian and Administration Tribunal [2006] QSC 39; at [10] to [16] that: (a) It is clearly not intended that there be a re-hearing in the Supreme Court [here the Appeal Panel], on the facts, simply for the asking. ... (b) To warrant a grant [of] leave, an applicant must demonstrate an arguable case of error in a finding, central, and not merely peripheral, to the determination, such that it would be unjust to allow the finding to stand... (c) The suggested factual error, or errors, must rest in the adoption of a factual position beyond the realms of reasonableness, or one that is clearly mistaken… (d) The factual error, or errors, should be plainly and readily apparent. The Court ought not embark on a comprehensive re-examination of all of the evidence to identify the error or errors. It would subvert the legislative intent if, factual error being suggested, the court were to embark on a comprehensive re-examination of the facts of the case to exclude the possibility.
Mr de Dassel submitted that, weighing all the information now available to us, it would not be appropriate for leave to appeal, or the appeal, to be allowed.
As Mason J explained in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 at [40]: It is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising [a discretionary] statutory power.
In Application by AMAM; Re SAM [2011] NSWSC 503, Hallen AsJ in the exercise of discretion under s 25M of the Act also stated, at [34] that: It would be unwise to attempt any definition of the matters that may legitimately be enquired into to determine whether the applicant is suitable. Each case must depend on its own circumstances. Needless to say, however, the Court must consider, at least, the proposed manager's character, honesty and ability to manage, diligently, the managed person's property in the managed person's best interests.
The Tribunal below referred to this passage at [22] of its reasons.
It is readily apparent that the Tribunal considered the evidence as to ZNX's prior bankruptcies and her plans for management of ZNY's estate in this context, when assessing ZNX's suitability for appointment
The new evidence regarding the correct date of ZNX's most recent discharge from bankruptcy and the circumstances which led to it would not, in our view have led to a different result if it was known by the Tribunal below. The Tribunal was clearly focussed on the evidence as to ZNX's ability to manage the financial affairs of ZNY and whether her appointment as financial manger would lead to the proper administration of ZNY's affairs without strife, such as that likely to be caused by ZNX's proposal, if appointed, to borrow a significant amount of money from ZNY.
On that basis, we are not satisfied that the appeal raises any of the factors which might warrant a grant of leave identified in Collins v Urban, as modified by the decision in P v NSW Trustee and Guardian.
We will not grant leave to appeal. The appeal is dismissed.

Decision 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 New South Wales Civil and Administrative Tribunal. Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 March 2020

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