ZOF v NSW Trustee and Guardian

NCAT Appeal Panel|2020-09-17|Before: Armstrong J

Introduction

This is the continuation of appeal proceedings under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) ("the NCAT Act") from a decision of the Guardianship Division of the Tribunal made on 3 October 2019 in which the Tribunal made a financial management order appointing the NSW Trustee and Guardian ("TAG") to manage the estate of ZOF. The Tribunal's order excluded ZOF's Centrelink income from being subject to management.
Having determined that the appeal should be dealt with by way of a new hearing (see ZOF v NSW Trustee and Guardian [2020] NSWCATAP 167), we proceeded to conduct a new hearing on 17 September 2020. At the conclusion of that hearing we ordered that the Tribunal's orders of 3 October 2019 be set aside, and in substitution, we ordered that the application for the appointment of a financial manager for ZOF be dismissed. These are our reasons for the orders made on 17 September 2020.

Publication of the names of the parties

The publication or broadcast of the name of any person, who is mentioned or is otherwise involved in an "internal appeal" against decisions made by the Guardianship Division of NCAT, is prohibited: s 65(1) of the NCAT Act. Being an official report of the appeal proceedings, that prohibition does not apply to these reasons for decision: s 65(3) of the NCAT Act. Nonetheless, because of the sensitive nature of the matters raised in these proceedings, we have decided not to publish in these reasons any details that may identify the parties.

Background and Preliminary Matters

ZOF ("the Appellant"), the subject person in the decision subject to this appeal, is a 59-year-old man who identifies as a member of the Bandjalung and Ngunawal people and is from regional NSW. The Appellant is a survivor of the Stolen Generations. He was taken from his parents as an infant, and placed into another family, and then into a group home at age nine or 10. He now lives with his auntie, ZOH, in another part of regional NSW.
Whilst these reasons should be read in conjunction with our previous reasons issued on 6 August 2020, it is useful to recount the following background as outlined in those reasons: [5] It is uncontested that the Appellant has a diagnosis of schizophrenia. [6] In 2017, the NSW Government commenced the NSW Stolen Generations Reparations Scheme ("the Reparations Scheme"). The Reparations Scheme is open until 2022, and provides survivors of the Stolen Generations with ex gratia payments of up to $75,000.00. [7] The Appellant was a recipient of this scheme in 2018, when he received $75,000.00 as a survivor of the Stolen Generations. Those funds, as noted by the Tribunal below, were subsequently disbursed and spent predominantly for the benefit of the Appellant's family and friends. [8] The Guardianship Division of the NSW Civil and Administrative Tribunal ("the Tribunal") hears applications for, among other things, financial management and guardianship under the Guardianship Act 1987 (NSW) ("the Act"). Its jurisdiction is protective - that means rather than looking to resolve disputes between parties, the Tribunal has as its primary concern the welfare and interests of the person who is subject to an application before it: s 4(a) of the Act. [9] In February 2019, the Tribunal received an application for a financial management order from ZOG, who identified herself as the Appellant's cousin. ZOG sought an order that TAG be appointed as the Appellant's financial manager, stating that a further lump sum payment was expected soon, and that she was concerned that other people in the Appellant's life would take the second lump sum payment from him. [10] On 10 April 2019, the Tribunal made an interim financial management order under s 25H of the Act appointing TAG as the Appellant's financial manager for a period of six months from the date of the order and excluding from that order the Appellant's pension income. … [12] On 18 September 2019, ZOG forwarded emails to the Tribunal Registry which advised that she no longer would be participating in the proceedings alleging that she and her family had been subjected to false allegations and personal attacks as a result of lodging the application. She also submitted that she was only assisting the Appellant's auntie, ZOH, who was intended to be the applicant in the proceedings. [13] On 3 October 2019, a differently constituted panel of the Tribunal conducted a further hearing in the proceedings in regional NSW. The Appellant was again represented in the proceedings by Mr Rolfe. ZOG did not participate in the hearing, but ZOH did, as did the Appellant and Ms Z. At the conclusion of the hearing the Tribunal ordered that the Appellant's estate, except for any Centrelink income, be managed by TAG.
After conducting a hearing on the merits of the Appellant's grounds of appeal, we made the following orders: (1) The Appeal Panel will deal with the appeal by way of a new hearing. (2) All evidence and submissions that were before the Tribunal below together with all evidence and submissions filed to date in this appeal will be considered to have been given in the new hearing before the Appeal Panel. (3) The order of the Tribunal of 3 October 2019 committing the management of the Appellant's estate (excluding any Centrelink income) to NSW Trustee and Guardian is to remain in force without variation pending further orders of the Appeal Panel. (4) The Appeal proceedings are adjourned to a date to be fixed by the Registrar.
The appeal proceedings were subsequently listed to continue on 17 September 2020 and proceeded before us on that date. Participants were invited to participate in the hearing by video link or telephone due to restrictions stemming from the COVID-19 pandemic.
The Appellant took part in the hearing by telephone accompanied by his cousin, (Ms Z) and continued to be legally represented by Ms Linda Rogers. The Appellant's aunt, ZOH, who had participated in the earlier hearing before us, advised through correspondence from her legal representative that she would not be taking any further part in the matter. As had been the case in all the hearings before the Tribunal (see [12] in [5] above), the original applicant for the financial management order, ZOG, took no part in the hearing. (X) and (Y) participated by video link on behalf of the TAG.

NEW HEARING

In having concluded that we should deal with the appeal by way of a new hearing, we were required to determine whether to exercise the discretion to make a financial management (and so effectively leave the existing order, or a variation thereof, in force) or not, in exercise of the functions of the Tribunal under the Pt 3A of the Guardianship Act 1987 (NSW). The legislative provisions of relevance are: 25E Tribunal may make financial management orders (1) The Tribunal may, in accordance with this Part, order that the estate of a person be subject to management under the NSW Trustee and Guardian Act 2009. (2) The Tribunal may exclude a specified part of the estate from the financial management order. ……… 25G Grounds for making financial management order The Tribunal may make a financial management order in respect of a person only if the Tribunal has considered the person's capability to manage his or her own affairs and is satisfied that: (a) the person is not capable of managing those affairs, and (b) there is a need for another person to manage those affairs on the person's behalf, and (c) it is in the person's best interests that the order be made
Before turning to examine the evidence and submissions before us in respect of each limb of s 25G of the Guardianship Act to determine if and how we should proceed to exercise the discretionary powers of Pt 3A of that Act, it is useful to note that the hearing before us focussed predominantly on the last two limbs of s 25G of that Act, that is, was there a need for an order to be made, and would an order be in the Appellant's best interests.
From our review of the evidence and submissions made in all proceedings, it would seem to be the position that no party or participant has at any stage suggested that the Appellant is incapable of managing his "usual" everyday income and expenses, consisting of receipt of a Disability Support Pension and making payment of normal everyday expenses. No one has sought the appointment of a financial manager over all of the Appellant's estate and both the orders made appointing a financial manager for the Appellant on 10 April 2019 and 3 October 2019 excluded the Appellant's "Centrelink income" from management. Rather, the focus of proceedings has been on the Appellant's ability to manage more significant monies that may be awarded to him by way of compensatory payment.
It is notable that some 18 months has passed since the original application was made to the Tribunal by ZOG. We were of the view that the additional evidence that was available to us, and which was not available to the panels of the Guardianship Division, went mainly to the issue of the need for an order and whether such would be in the Appellant's best interests, in the context of whether or not the Appellant was to receive any significant monies in the immediate future. That evidence consisted of the Appellant's direct evidence as to the impact the order has had upon him, particularly his cultural identity, and the evidence as outlined at [36] in our previous reasons on this appeal: [36] Much of the documentation submitted in the appeal on behalf of the Appellant was evidence that was not available to the Tribunal below. For example, the Appellant submitted a report entitled "Expert Opinion for consideration by the NCAT Appeal Panel" dated 14 April 2020 and authored by Dr W who reports having completed a PhD "exploring the historical, cultural and familial context of money as it flows through indigenous households in remote, reginal and urban Australia". Another example is a letter from Carroll O'Dea Lawyers dated 15 April 2020 advising that they act for the Appellant in relation to an unlitigated claim against the State of NSW arising from his treatment when he was a ward of the State and providing an overview of the current position of such un-litigated claim.
We had no additional documentary evidence as to the Appellant's capacity to manage his affairs, and we did not have the benefit of taking evidence from the health professionals who had authored the documentary evidence that was before us.
Whilst acknowledging that the need to determine whether the Appellant is not capable of managing his affairs as prescribed by s 25G(a) of the Guardianship Act may be characterised as a threshold issue before a financial management order could be made, in circumstances where the provision of additional evidence may lead to a conclusion that we should not exercise the discretion to make an order because s 25G (b) and (c) of that Act are not satisfied, we considered it appropriate to focus predominantly on these matters. In P v NSW Trustee and Guardian [2015] NSWSC 579, Lindsay J at [315] to [320] elaborated on the significance attributed to the elements of s 25G other than the need to make a finding of incapacity before the discretion to make a financial management order can be exercised: [315] A finding of incapacity for self-management is a necessary, but not a sufficient, condition for the making of a financial management order under the Guardianship Act, section 25E. [316] The word "may", twice appearing in section 25E, indicates that the powers conferred by the section may be exercised or not, at the discretion of the Tribunal: Interpretation Act 1987 NSW, section 9. It does not mean "must": Ward v Williams (1955) 92 CLR 496 at 505-506; Finance Facilities Pty Limited v Federal Commissioner of Taxation (1971) 127 CLR 106 at 134-135 and 138-139. [317] Nevertheless, the discretionary powers conferred on the Tribunal are not at large. Generally, as earlier noted, they are confined by the subject matter, scope and purpose of the protective jurisdiction. In particular, they are confined by a need to consider whether there is a need for a protected estate manager (section 25G(b)) and whether it is in the subject person's best interests that a financial management order be made (section 25G(c), read with sections 3(2) and 4 of the Guardianship Act). [318] Confirmation that a finding of incapacity for self-management is not a sufficient cause for the making of a financial management order can be found in section 25P(2)(b) of the Guardianship Act. That provision contemplates that the Tribunal may revoke a financial management order if it considers that it is in the best interests of a protected person that a revocation order be made, even though the Tribunal may not be satisfied that the protected person is capable of managing his or her affairs. [319] One illustration of a case where it may be appropriate to dispense with a protected estate manager despite a finding of incapacity for self-management may be, by analogy with the Court's inherent jurisdiction, where there is no practical utility in burdening a person or his or her estate with the administrative infrastructure necessarily involved in protected estate management: Re W and L (Parameters of protected estate management orders) [2014] NSWSC 1106 at [87]-[89] and [95]. Another, drawing specifically upon the liberal intent of the general principles set out in section 4 of the Guardianship Act, may be a case in which the Tribunal decides to take a risk in allowing a person in need of protection an opportunity to enjoy freedom of decision, freedom of action and the possibility of normal life living in community with an empathetic family: cf, M v M [1981] 2 NSWLR 334 at 336A-B, 336C-D and 337F-338D; CJ v AKJ [2015] NSWSC 498 at [50]-[51] and [54]-[58]. [320] Ultimately, what is done or not done, must be measured against whether it is in the interests, and for the benefit, of the particular person in need of protection: Guardianship Act, section 4(a); Holt v Protective Commissioner (1993) 31 NSWLR 227 at 238D-F and 241G-242A; GAU v GAV [2014] QCA 308 at [48].

ZOF's capacity to manage his own affairs

There was no evidence as to the appellant's capability to manage his financial affairs sourced from health professionals before us that was not before the panel of the Tribunal below. That evidence was limited to a letter authored by Dr Y, general practitioner, dated 23 January 2019, and an assessment report written by Mr X, psychologist, dated 5 September 2019. We did not have the benefit of either author having been made available to provide direct evidence at the hearing.
The Dr Y letter can only be described as minimal. Apart from stating that the appellant was diagnosed with Paranoid Schizophrenia in 2002, the letter states: I support the application for guardianship (sic), as John evidently does not have capacity to make independent financial decisions.
The Appellant's evidence was that he had never met Dr Y, and that he understood that she was a locum who had written the letter from simply reviewing his medical file. On this basis, the Appellant's representative submitted the letter should be afforded no weight.
The report from Mr X was commissioned by the Appellant's former legal representative, Mr Rolfe, in compliance with orders made by the Tribunal on 10 April 2019 when the initial interim financial management order was made. It indicated that Mr X assessed the appellant on 5 August 2019. Relevant extracts of that report include: … [The Appellant] reported having a poor memory particularly in relation to anterograde memory with some historical recall present. [The Appellant] demonstrated some insight into his mental health needs identifying that he was diagnosed with Schizophrenia and required a regular needle…. [The Appellant] completed a cognitive examination using the Test of Non-Verbal Intelligence (4th Edition). Given his non-standard education and literacy issues a non-verbal measure of intelligence or similar tests that do not require a high level of culture specific information or reading abilities is most appropriate. [the Appellant] demonstrates results that provided an Index Score of 82 [Footnote removed for publication.] on the TONI-4 which places him on the 12th Percentile Rank in the 'Below Average' category. [The Appellant] also completed the Hayes Ability Screening Index which is utilised as a screening tool for cognitive impairment and utilises some neuropsychological tests including the trail making test and clock drawing test. In some areas of the examination [the Appellant] was able to perform well for example spelling words backwards however in tasks requiring the combination of visuo-spatial skills, processing speed and visual processing a clear delay was observed. Particular cognitive problems were identified with tasks such as the Trail Making Test. [the Appellant] was not able to complete the task: violating the rules of the task and required an extreme amount of time to complete it. The nature of his performance indicated significant impairment in cognitive processing speed, visual scanning and organisation tasks. His initial attempt at the Clock Drawing task evidenced similar patterns to individuals with severe cognitive deficits particularly in relation to visuo-spatial coordination. … 1. [The Appellant] was able to understand first order consequences to his decisions for example if money is spent on family it will not be present for buying furniture. More detailed understanding of consequences was limited however he was able to demonstrate the ability to evaluate the consequences of each choice to a limited extent. 2. [The Appellant] was able to demonstrate a limited understanding of how the consequences of hid decisions will impact him. I am of the opinion that this understanding of consequences is limited in scope particularly over time, however immediate consequences were understood. … Considering the NSW Guardianship Toolkit criteria listed above in conjunction with Section 3 definitions within the NSW Guardianship Act (S3(1)). 1987) and the General Principles of the Guardianship Act (S4) I am of the opinion that neither a Guardianship order nor a Financial Management order is required. [The Appellant] appears able to make informed decisions albeit with a limited scope and his own priorities. He was able to identify that he had previously spend large amounts of money on family - however only on specific members of his family that he chose and because he is of the belief that supporting them was a reasonable choice and in retrospect is content with those choices.
Ms Rogers noted that in Re D [2012] NSWSC 1006 White J used a "rational appreciation" of assets test to determine a person's capability to manage his or her affairs and that he adopted the reasoning of Barrett J in P v R [2003] NSWSC 819 who said that the task of the Court in these circumstances (at [26]: … is to make a judgment as to the capacity and ability of the person concerned to cope with the ordinary routine affairs of living, particularly so far as they concern the person's property…the requisite judgment is to be made in the light of objective physical facts concerning the relevant person's property, money and other assets and the way the person is able to look after them. If there is a lack of capacity, the reason for it does not matter.
She also emphasised to us the importance of making factual findings as to the nature of the appellant's estate based on the evidence available rather that what was described as a "mere possibility" of an enhanced estate at an indefinite point in the future. Whilst noting that the follow passage referred to the "affairs" of the person as defined in s 41 of the NSW Trustee and Guardian Act 2009 (NSW) rather than s 25G of the Guardianship Act, Ms Rogers directed us to the commentary of Lindsay J in H v H NSWSC [2015] 837 at [30]: [30] Following the judgment of White J in Re R [2014] NSWSC 1810 at [84]-[94], and my own judgments in CJ v AKJ [2015] NSWSC 498 and P v NSW Trustee and Guardian [2015] NSWSC 579, it may be taken that the "affairs" the subject of an inquiry about capacity for self-management, in the context of section 41 of the NSW Trustee and Guardian Act, are the affairs of the person whose need for protection is under scrutiny, not some hypothetical construct.
It was Ms Roger's submission to us that on the evidence before us we could not, with sufficient certainty, conclude that the Appellant's estate as at the time of hearing and for the reasonably foreseeable future would consist of any more than income from Centrelink. On the basis that there was no evidence asserting that the appellant could not aptly manage this form of estate, and no party to the proceedings arguing to the contrary, it was the Appellant's submission that we should conclude that he is capable of managing his own affairs.

The need for another person to manage the Appellant's affairs on his behalf

Evidence and submissions

Ms Rogers submitted that, when the financial management application is framed through the lens that an order was only necessary if the Appellant was to be receiving some form of compensatory sum to enhance his minimal estate, then the evidence before us could not satisfy us, to the requisite standard, that there was in fact any definitive compensation payable to the Appellant in the reasonably foreseeable future, and accordingly, we could not be satisfied that there is a current need for another person to manage the Appellant's affairs.
Our attention was directed by Ms Rogers to extracts of the transcript of the hearing the subject of the appeal of 3 October 2019 during which the panel of the Tribunal enquired of participants as to the quantum of any forthcoming compensation to the Appellant. The Appellant stated that he did not know the amount. His aunt, ZOH, proffered the view that an amount of $180,000 was likely. The Appellant's solicitor at the time, Mr Andrew Rolfe, informed the panel that he had been told by the solicitors acting for the Appellant in the matter that there was an estimate of "at most $100,000".
In the course of the appeal proceedings Ms Rogers had written by letter dated 14 April 2020 to Carroll & O'Dea Lawyers making enquiries of any matters in which they were acting for the Appellant, the progress of such matters, and associated enquiries. Carroll & O'Dea Lawyers replied to Ms Rogers by letter dated 15 April 2020. Relevant extracts of the exchanges include: What is the type of case or claim your firm running for [the Appellant]? What is the process involved? Does the case involve commencing proceedings or not? We are acting on behalf of [the Appellant] in relation to an un-litigated claim against the State of New South Wales ("the State") arising from his treatment when he was a ward of the State and under the care of the Child Welfare Department and/or Aboriginal Welfare Department. Ordinarily, in matters such as [the Appellant]'s, we would not recommend commencing proceedings before engaging in an alternative dispute resolution process (ADR) that we have organised with the Crown Solicitors, who act on behalf of the State. The ADR process with the Crown Solicitors involves: • Taking [the Appellant]'s statement in relation to the circumstances of the claim • Serving the statement upon the Crown Solicitors • Organising and informal settlement conference where [the Appellant] can receive an apology from an executive member of the State of New South Wales and negotiate financial compensation. How far along in this process is [the Appellant]? What further steps need to be taken? How long would this take? We are in the process of drafting [the Appellant]'s statement and following, will need to organise an informal settlement conference with the Crown Solicitors. We cannot estimate with any certainty when the informal settlement conference will be organised with the Crown Solicitors. There has been a considerable delay in this regard for other Stolen Generation claimants similar to [the Appellant]. These delays have related to, but are not limited to, the availability of the Crown Solicitors and their client and also because of the current problems associated with COVID-19. … Are you able to state, at this stage, whether [the Appellant] is likely to receive further funds as a result of the case or claim? If so, can you estimate how much money it would be? If not, when would you have a picture of what the likely outcome of the matter might be? We are of the view that there is a reasonable prospect that [the Appellant] will be conveyed offers of settlement by the Crown Solicitor's when an informal settlement conference is arranged. The offers made by the State of New South Wales are largely dependent on their views or in relation to the claim. It was suggested to the Guardianship Division at the hearing on 3 October 2020 that [the Appellant] is due to receive a second payment under the Stolen Generations Reparations Scheme and that it would be larger than the first payment of $75,000 and in the order of $100,000. Another figure suggested in oral evidence at the hearing was $180,000. Is any of this information correct? We are of the opinion that this information is incorrect.
The Appellant gave evidence that whilst he had provided a statement to Carroll & O'Dea Lawyers "sometime ago", he had not heard anything about his claim in recent times and he did not know anything further about the matter.
Ms Rogers' submission to us was that we should deduce from her exchange with Carroll & O'Dea Lawyers and from the appellant's evidence that: the Appellant has engaged representation to instigate a claim against the State of NSW; there has been delay in progressing the matter; there is no certainty as to the duration before the Appellant could expect any compensatory payment to be made, if indeed a payment is to be made; and there is no evidence before us as to the quantum of any likely compensation amount.
The representatives of the TAG informed us that they had endeavoured through several communications to obtain information as to the claim the Appellant had engaged Carroll & O'Dea to progress, but had not received any response.
Ms Rogers noted that as the financial management order made by the Tribunal excluded the Appellant's Centrelink income, and there had been no enhancements to the Appellant's estate since the order was made by way of compensation payment or otherwise, the appointed manager, the TAG, had actually not needed to manage any of the Appellant's estate since the order was made. The order had been of no utility.

Evidence and submissions

Ms Rogers argued that the very existence of the order, despite it seemingly as yet having not deprived the appellant of self-management of any of his estate, had been detrimental to the Appellant due to his cultural heritage which in turn was linked to personal history of having been part of the Stolen Generations since the age of three months.
She directed us to the report of Dr W dated April 2020 (as described at [12] above), an extract of which is as follows: Did you make any observations in your research that touched on any or the following: Aboriginal views, values or cultural norms about people in authority, resentment about control of a person's actions and in particular their money or being questioned by bodies such as NCAT? Response: As described in my response to (iv) above, several research participants described not trusting mainstream institutions, linking this back to the history of deliberate exclusion and marginalisation dating back to the colonisation of Australia. In the literature review for my PhD. I also found references to a lack of Indigenous trust in institutions such as the government and financial services providers, which persists in modern day Australia. In my opinion this is not a cultural norm, rather a remnant of a colonised people who feel disconnected from mainstream society and economy. Insofar as resenting decisions about one's money being controlled by others. I would say the research shows that this is a universal phenomenon. Money is a deeply private topic for many people irrespective of their cultural links, and the sociology of money reveals how people want to control it. Given this, I would not be surprised to find that [the Appellant] might resent others telling him what to do with his own money, though I do not believe this is specifically linked to his culture.
Our attention was also drawn to the following paragraph of ZOH's written statement on the Appeal, who despite being of the view a financial management order was required, stated: [The Appellant] feels that having the financial management order on him affects his identity and cultural ways. It does to some ways (sic) but he is still a wonderful and kind Aboriginal man and that can never be taken from him.
The appellant provided to us his very clear views on the impact of the order upon him as follows: It [the order] has taken away my identity as an aboriginal man, I was brought up to share and care…… The order has taken away my freedom and everything - you don't know what it is like - I do….. [The order] takes a lot of things away, it is like living under the thumb. If you have been where I have been, I have always been under rules and this is just another rule put on me. I have been under rules since I was 3 months old, under white mans' rules. This is like living under the rule again.
Ms Rogers submitted that we should accept the appellant's uncontradicted evidence as to the impact the order had had upon him, especially in relation to his cultural norms and values, which, in light of him having been part of the Stolen Generations, meant that the negative impact and his personal perceptions of the order had been amplified for the appellant. She submitted this should lead to a conclusion that an ongoing order could not be in the Appellant's best interests, particularly given the order has had no utility to date, and the uncertainty of the evidence as to whether an ongoing order would indeed have any work to do into the immediate future.

Consideration

After having examined all the evidence and submissions before us we were not satisfied that we should exercise our discretion and allow for the financial management order to continue over any part of the Appellant's estate. We were not satisfied that a financial management order, at this time, was in the interests, and for the benefit of the appellant (see P v NSW Trustee and Guardian at [320]).
We concur with the submissions advanced for the Appellant that the evidence could not satisfy us that there is current need for financial management over the Appellant's estate.
At this point in time, the Appellant's estate is limited, consisting of income from Centrelink. There is no suggestion that the Appellant cannot manage an estate of this nature. As to the prospect of his estate being significantly enhanced in the reasonably foreseeable future, it would seem from the correspondence exchanged between Ms Rogers and Carroll & O'Dea Lawyers that it is more probable than not that the Appellant will receive some compensatory payment in his claim against the State at some future point in time. However, in our view, it is simply too speculative to suggest this could currently form the basis to conclude that there is a need for a financial manager to be appointed. There was no evidence to suggest that the Appellant cannot give valid instructions to his legal representatives in the claim. There was no evidence available to us as to the likely quantum of the claim. It is unclear whether any payment flowing to the Appellant would occur in the months, or in fact, the years ahead.
We were also not satisfied that an order is currently in the best interests of the Appellant.
We accept the un-contradicted evidence of the Appellant as to the negative perception he has of the order and as to how it diminishes his cultural identity. His position in this regard was supported to some extent by the report of Dr W (see [30] above).
In our previous reasons issued on this appeal we expressed the following views: [65] Aside from the matter of how the Tribunal elicited and analysed evidence relevant to the Appellant's Aboriginality, in these proceedings, the Tribunal was required to then consider the preservation of the Appellant's cultural environment for each legislative element leading it to exercise its discretion to make a financial management order over the Appellant's estate. The issue of culture was in no way limited to the determination of the Appellant's capacity to manage his affairs: the Act, s 25G(a). It was also relevant, perhaps equally important, in the Tribunal's determination of whether an order would be in the Appellant's best interests (s 25G(c) of the Act) and who should be appointed as manager (s 25M(1) of the Act). … [70] On that basis, in appropriate circumstances, cultural factors (that is, s 4(e) of the Act) could be of such significance that despite the Tribunal being satisfied that a person is incapable of managing their affairs and that there is a need for financial management, that the ramifications of the order on a person's cultural and linguistic environment is so great that it cannot be concluded, on balance, that an order is in a person's best interests. This is a question of fact and degree which can only be decided on a case by case basis
In the circumstances particular to the Appellant, that is: he is a member of the Stolen Generations, which has amplified his negative perception of the existing order to a degree which perhaps may not be the case for someone not of his cultural background and history; the order to date has proved to be of no utility; and there is insufficient certainty surrounding the Appellant's claim against the State to conclude an order could be of requisite utility in the recently foreseeable future: when having regard to the principles enunciated in s 4 of the Guardianship Act to evaluate how to exercise the discretion afforded to us by Pt 3 of that Act, we are not satisfied that an order should be made.
We are mindful that in having reached our conclusion we have not expressed a definitive view on the Appellant's capability to manage his estate if in fact it were to be enhanced by a compensatory payment. It may well be that if a relatively significant payment does come to the Appellant in the future, and if a person with the requisite standing makes a further application to the Tribunal, the Tribunal may need to grapple with this element definitively at another time.
But at this point in time, the evidence available to us from health professionals did not address the specific issue of the Appellant's ability to manage an enhanced estate, we had no ability to take further evidence from the authors of the reports before us on this matter, and more specifically, we had no ability to seek such authors views on the specific issue of the Appellant's aboriginal identity and its relevance in determining his capability to manage his affairs.
Accordingly, as we are not satisfied that we should make a financial management order as provided for under Pt 3A of the Guardianship Act, we make the following orders on the Appeal:

Orders 1. The Appeal is allowed. 2. The Tribunal's orders dated 3 October 2019 are set aside, and in substitution, the Appeal Panel makes the following order: 1. The application for the appointment of a financial manager for the Appellant is dismissed. 1. The TAG is directed to release to the Appellant any monies in its possession or under its control forming part of the Appellant's estate.

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: 03 December 2020

Trustee and Guardian Act 2009(NSW)

At a glance

Court

Decision date

Before

Source

Judgment (11 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (13)