[1948] 1 KB 223)
Australian Broadcasting Tribunal v Bond [1990] HCA 33
(2010) 241 CLR 390
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
(2014) 231 FCR 437
Minister for Immigration and Citizenship v Li [2013] HCA 18
Source
Original judgment source is linked above.
Catchwords
[1948] 1 KB 223)
Australian Broadcasting Tribunal v Bond [1990] HCA 33(2010) 241 CLR 390
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1(2014) 231 FCR 437
Minister for Immigration and Citizenship v Li [2013] HCA 18
Judgment (34 paragraphs)
[1]
Introduction
This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) against a decision made in the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) on 4 August 2020.
For the reasons set out below, we have decided to dismiss the appeal.
[2]
Publication of parties' names
The publication or broadcast of the name of any person mentioned or otherwise involved in an "internal appeal" against decisions made by the Guardianship Division of NCAT is prohibited: ss 65(1), 65(2) of the NCAT Act. Being an official report of the appeal proceedings, that prohibition does not apply to these reasons: s 65(3) of the NCAT Act. Nonetheless, because of the sensitive nature of the matters discussed in these reasons, we have decided to order that publication of the names of the parties, or other persons or information be prohibited.
In these reasons, we will not refer to the parties by name. For the purpose of this appeal, the Registrar assigned pseudonyms to the parties but to avoid confusion and for ease of reading, in these reasons we will not use the pseudonyms but will refer to the parties identified by pseudonyms as follows:
1. "ZOI" - the Appellant son;
2. "ZRS" - the Appellant daughter;
3. "ZOJ" - the subject person or mother of the other parties;
4. "ZOK" - the Respondent son; and
5. "ZRJ"- the Respondent daughter.
The background to this appeal is that the Subject Person is an 82-year-old widow of Fijian Indian heritage. She has six children, two sons and four daughters, who in order of age, are as follows:
1. a daughter who lives in New Zealand (referred to as the "New Zealand daughter") who is not a party to the appeal;
2. a son, the Respondent son and his twin sister the Appellant daughter, both of whom live in Sydney;
3. a son, the Appellant son, who lives in Sydney;
4. a daughter, who lives in the United States (referred to as the "United States daughter") who was not a party; and
5. a daughter, the Respondent daughter, who lives in Sydney.
The Subject Person has, as well, sons-in-law, daughters-in-law and a large number of grandchildren.
The Subject Person migrated to Australia in 2008. She visited each of her children and stayed with them and their families from time to time, including those living in New Zealand and the United States. In 2018 she was diagnosed with dementia and in 2019 had a fall while staying with the Respondent daughter and had a period in hospital. After discharge she moved to the Appellant son's home.
[3]
History of guardianship proceedings regarding the Subject Person
The proceedings under appeal were heard and decided on 4 August 2020. However, there were proceedings before the 4 August 2020 decision concerning the Subject Person which are important for certain aspects of this appeal. They are in summary:
1. On 9 August 2019 the Guardianship Division made a guardianship order appointing the Appellant son as guardian for a period of 12 months with the functions of accommodation, health care and visa. On the same date the Tribunal made a financial management order appointing the Appellant son and the Appellant daughter jointly and severally as financial managers for the Subject Person. We will call these the "August 19 orders".
2. The Respondent son requested a review of the August 19 orders and on 16 December 2019 the Guardianship Division heard that application, varying the orders by making a guardianship order appointing the Public Guardian for a period of 12 months and giving the Public Guardian the function of access. Following review of the financial management order, the Tribunal reappointed the Appellant son and the Appellant daughter as financial managers for the Subject Person, jointly and severally. In addition, the Tribunal made orders requiring that the financial management order be reviewed within 12 months. We will call these the "December 19 orders".
3. On 11 March 2020 the Respondent son filed applications to review or revoke the December 19 financial management orders and also to review the December 19 guardianship order. On 24 March 2020 the Respondent daughter filed a separate application requesting a review of the December 19 guardianship order. Despite the separate applications, the Respondent son and the Respondent daughter were, in effect, seeking the same outcome and supported one another at the hearing.
4. On 4 August 2020, the Tribunal determined the three applications referred to in the previous subparagraph. In addition, the Tribunal determined the scheduled review of the reviewable financial management order, being one of the orders made in the December 19 hearing.
5. At the August 20 hearing. it was common ground that the Subject Person was a person with a disability (dementia), that she was a person in need of a guardian and that she needed a substitute decisionmaker for lifestyle decisions. It was also common ground that she was incapable of managing her affairs and there was a need to appoint a financial manager. The real issue at the hearing was who was to be guardian and who was to be financial manager.
6. Orders made at the end of the August 20 hearing in summary were:
1. Appointing the Public Guardian as guardian for 12 months with the functions of Access, Accommodation, health care, medical and dental consent and services; and
2. Appointing NSW Trustee & Guardian as financial manager.
These orders are the subject of this appeal.
[4]
Grounds of Appeal
All the children of the Subject Person were self-represented in the Appeal. Although the Notice of Appeal identified only the Appellant son as appellant, the Tribunal accepted that the Appellant daughter was appealing from the order revoking her appointment as financial manager although she did not file separate submissions to the Appellant son, who mainly spoke for her. The written submissions by the parties were voluminous, with many matters raised which were not relevant to the appeal.
In Cominos v Di Rico [2016] NSWCATAP 5, the Appeal Panel stated at [13]:
"13. It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice."
Guided by these authorities, we reviewed the Appellants' material and discussed it at the hearing in order to clarify the grounds of appeal. After that process the Appellants agreed their grounds could be fairly stated as follows:
1. The Tribunal erred in failing to make a finding on critical issues of fact concerning:
1. the alleged misappropriation of the Subject Person's pension funds;
2. the alleged misappropriation of the Subject Person's taxi business; and
3. the circumstances of the making of a will by the Subject Person in 2003.
1. The Tribunal erred in failing to have regard to the principles stated in s 4 of the Guardianship Act, 1987 (NSW), including that the welfare and interests of the Subject Person are paramount
2. The Tribunal erred in proceeding on a mistaken assumption that the Tribunal was a "consent jurisdiction" meaning that decisions were to be made by the consent of the majority of parties
3. The Tribunal erred in failing to afford procedural fairness to the Appellants in that it:
1. failed to have regard, or sufficient regard to the views of the Subject Person's carer
2. "shut down" or failed to allow the Appellant son to give evidence regarding the alleged misappropriation of pension funds
3. devoted only one line in the reasons to the views of the Appellant daughter
4. failed to have regard to the views of the subject person due to the failure of the separate representative to have an interpreter as the Subject Person does not speak English
5. demonstrated actual bias against the Appellants.
1. The Tribunal failed to have regard to mandatory considerations regarding cultural issues.
2. The Tribunal made a factual finding for which there was no evidence.
3. The Tribunal erred in that the decision was so unreasonable that no reasonable Tribunal could make it.
[5]
Ground 1(a) - The Tribunal erred in failing to make a finding regarding the alleged misappropriation of the Subject Person's pension funds
The background to this issue is that about 50% of the Subject Person's pension income is paid by the Fiji government into an Australian bank account. In August 2019 the Appellant son alleges that the Respondent son and the New Zealand daughter fraudulently re-directed that pension to a bank account in New Zealand, for their own benefit. The Appellant son said that about $5,000 was misappropriated. The Tribunal decided at [75] that
"..the [Appellant son] claimed his siblings, including the [Respondent son] had misappropriated [the Subject Person's] Fiji and pension and $5,607.54 had to be recovered by the Fiji government. While the tribunal was provided with documents from various authorities in Fiji and New Zealand, I could not be confident those documents were authentic given the claims and counter claims of fraudulent conduct by [the Subject Person's] children".
This, the Appellants said, was an error of law because the Tribunal failed to tackle the real issue of whether a fraud had occurred, as alleged.
Given that the Tribunal had appointed an independent financial manager (the NSW Trustee and Guardian) we asked the Appellant why this was a critical issue. Further, the Tribunal had recorded at [60], [61] and [63] that the Appellant daughter and the Appellant son had no objection if the NSW Trustee and Guardian was appointed as the Subject Person's financial manager.
The Appellants said that this issue was important because it demonstrated that the Respondent son and the New Zealand daughter could not be trusted. Further it demonstrated that the Appellant son and the Appellant daughter would be better placed to be financial manager because the NSW Trustee and Guardian said that it did not have jurisdiction to recover those funds from New Zealand.
The Respondents said the Tribunal's finding was sufficient. Further, this matter was simply explained by the fact that The Subject Person had authorised the re-direction of the pension to New Zealand. The Tribunal did not need to deal with it as it had already been decided in the December 2019 decision.
[6]
Consideration
In our view, it was open to the Tribunal to decide that it was unnecessary to form a view about this issue. That was because the reasoning of the Tribunal was, in effect, that an independent financial manager was required in this case due to the animosity between the Subject Person's children.
This is illustrated by the following excerpt at [64] of the reasons:
While [the Subject Person's] estate is relatively modest, I formed the view that there is likely to be ongoing assertions of wrongdoing if [the Appellant son] and [the Appellant daughter] continue to manage their mother's affairs. While a level of dissatisfaction is not unexpected given the mistrust between [the Subject Person's] children, involvement of police in multiple jurisdictions and initiation of civil proceedings is an indication of the exceptionally high level of antipathy in this case. This continuing tension is not in [the Subject Person's] best interests and is likely to cause her substantial distress.
Whether the animosity was based upon provable illegal conduct does not affect whether the animosity exists or not. No one suggested the animosity does not exist. It is referred to repeatedly throughout the reasons for the decision under appeal and in the December 19 decision. It was not apparent in the reasons for the August 19 orders because only the Appellant son and the Appellant daughter were parties and present for that hearing. When the other siblings became aware of the August 19 decision, they were upset that a decision had been made in their absence, which was the stimulus for the December 19 hearing.
Further, the evidence disclosed that the subject funds had been recovered in any event (see [75]).
That would be sufficient to find no error of law on this issue.
However, the matter warrants closer examination because the Appellant son raised the issue of the New Zealand pension repeatedly throughout the appeal as justification for other grounds of appeal. We note:
1. A factual finding concerning the New Zealand pension had already been made in the December 19 decision. The allegation of fraud was analysed in some detail at [27] where:
1. The Tribunal accepted an explanation provided by the then separate representative, that following the Subject Person's discharge from hospital she wanted to go to New Zealand to visit the New Zealand daughter and her family and in anticipation of doing so, asked for her pension to be paid into a New Zealand account.
2. The Tribunal records that the Subject Person herself confirmed this arrangement during the hearing and it was also confirmed by the New Zealand daughter. The Tribunal accepted the Subject Person's recollection despite her memory difficulties and gave other reasons for accepting it including that it was inherently implausible the Respondent son and the New Zealand daughter would conspire to deprive their mother of her pension.
3. The Tribunal concluded this issue at [28] as follows - in the tribunal's view, the [Appellant son's] accusations concerning the redirection of the pension demonstrate nothing so much as a sad state of relations between him and most of his siblings"
4. The Tribunal at [27] declined the Appellant son's application to adjourn the review hearing for an indefinite period until matters were further investigated. There was no appeal from the December 19 decision.
1. We conclude that the factual issue of the redirection of the pension has been decided and the Tribunal was correct in the decision under appeal not to revisit this issue.
2. In the reasons for the December 19 orders the Tribunal was critical of the Appellant son, concluding at [21] "..that by reason of his conduct, [the Appellant son] is not a suitable person to be appointed as [the Subject Person's] guardian". The essential elements to that finding were, in summary, that when making the original August 19 orders and at that hearing, he did not inform the Tribunal of the close continuing involvement in the Subject Person's life of his siblings, that he failed to inform his siblings clearly and directly of his decisions as to her accommodation and left them in ignorance of their mother's whereabouts. The Tribunal said this is inconsistent with the discharge of a guardian's statutory obligation to foster the preservation of family relationships.
[7]
Ground 1(b) - The Tribunal erred in failing to make a finding regarding the alleged misappropriation of the Subject Person's taxi business
The background to this issue is that the Subject Person managed a taxi business in Fiji. The Appellant son alleged this taxi business was appropriated by the Respondent daughter through fraudulent means by forging a doctor's certificate claiming the Subject Person was medically unfit to operate a public vehicle. He further alleged that the Respondent daughter submitted a forged letter to the Department of Transport, Fiji requesting the business be transferred into the Respondent daughter's husband's name. Documents were attached indicating this transaction occurred in 1995.
As with the previous ground, we asked the Appellant why this was a critical issue since an independent manager had already been appointed and the Appellants did not object to that occurring.
The Appellants said that this issue was important because it demonstrated that the Respondent daughter could not be trusted. Further it demonstrated that the Appellant son and the Appellant daughter would be better placed to be financial manager.
The Respondents said in summary, that these events occurred 25 years ago well before when their mother began to lose capacity to make decisions herself. It was common ground that she began to lose capacity in about 2018.
[8]
Consideration
We accept the Respondents' submissions and conclude that the Tribunal did not have to decide this controversy as it was not central to the issues to be decided. The Tribunal was not obliged to resolve these allegations. The question of who was to be financial manager was resolved by choosing an independent manager due to intense family conflict. Once again, it is the fact of conflict which the Tribunal was entitled to consider, rather than the rights and wrongs of the origin of the conflict.
That would be sufficient to find no error of law on this issue, but in any event, the documents provided by the Appellant son in support of his argument appear regular on their face and there was nothing to suggest any fraudulent conduct (apart from the allegations of the Appellant son). For instance, there was no evidence of proceedings being taken in Fiji to set aside the transaction. Further, in 1995 the Subject Person was of full capacity and was entitled to determine to transfer her taxi business to whomever she pleased.
[9]
Ground 1(c) - The Tribunal erred in failing to make a finding on critical issues of fact concerning the circumstances of the making of a will by the Subject Person in 2003
The Appellants said that the will made by the Subject Person on 16 July 2003 demonstrated that his sister the Respondent daughter could not be trusted. The circumstances were that the will was made just three days after the Appellant son left Fiji and left the Subject Person in the care of the Respondent daughter. He said it was very suspicious that the Respondent daughter was a beneficiary in this will.
The Respondents said that the will was made when the Subject Person had full capacity and there is nothing controversial about it. A copy of it was amongst the appeal papers and showed that the Subject Person left her estate equally between all her children.
[10]
Consideration
We accept the Respondents' submissions and conclude that the Tribunal was entitled to ignore these allegations in it reasons for the same reasons given in relation to Ground 1(b). Further, we do not consider the making or contents of the will to be relevant to any issue the Tribunal needed to decide.
[11]
Ground 2 - The Tribunal erred in failing to have regard to the principles stated in s 4 of the Guardianship Act including that the welfare and interests of the Subject Person are paramount
The Appellants' central criticism was that the Tribunal failed to accept that the Appellant son and the Appellant daughter were best placed to appointed as financial managers. When asked, the Appellants said they relied on each part of the s 4 principles, but their argument was centred on s 4(b) which is:
4. It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles:
(a) the welfare and interests of such persons should be given paramount consideration,
(b) the freedom of decision and freedom of action of such persons should be restricted as little as possible,
…
It was argued that the change in financial manager offended s 4(b) because it was in their mother's best interest to remain with the existing financial managers (that is, the Appellants) because that was her wish and involved the minimum of disruption and caused the least restriction to her freedoms. The Appellant daughter said she had been financial manager for 19 years.
The Respondent son argued that that the Subject Person wanted the Appellant son and the Appellant daughter to manage her affairs only because she was easily influenced by those around her. The Respondent daughter said the Appellant daughter was not the only one to assist their mother with financial matters because she (the Respondent daughter) had undertaken this role at times in the past as well. She conceded that her mother had said she preferred the Appellant son and the Appellant daughter to be financial managers, but said she was "just OK with it".
We asked the Appellants why this Ground is of concern when they had not objected to the appointment of the NSW Trustee and Guardian during the hearing on 4 August 2020, see reasons at [60], [61] and [63]. The Appellants said they were responding to a question of who should be financial manager if their appointment were revoked. The Appellants say their argument at the Tribunal was that it would be in their mother's best welfare and interests for them to be re-appointed and the NSW Trustee and Guardian was not the best option.
[12]
Consideration
We reject the contention that the Tribunal failed to consider the s 4 principles. A fair reading of the reasons from [63] - [78] reveals that the Tribunal considered the welfare of the Subject Person to be the paramount consideration. While the Tribunal did not expressly address subsection 4(b), this does not constitute an error in itself.
This ground of appeal fails.
[13]
Ground 3 - the Tribunal erred in proceeding on a mistaken assumption that the Tribunal was a "consent jurisdiction" meaning that decisions were to be made by the consent of the majority of persons
This ground appears to have arisen from sentences at [33] and [56] where the Tribunal noted that the majority of the Subject Person's children are concerned about her vulnerability and the current arrangements. The Appellants say that because the Subject Person was susceptible to financial abuse, the decision should have been made upon prudent financial considerations which were carefully weighed including history of the matter and the fees involved. The Appellants alleged the Subject Person was happy with the Appellant daughter as financial manager. The error was in reasoning that the Subject Person's best interests should be determined by majority decision. The Appellant son said the allegations of misappropriation he made were bound to cause conflict.
The Respondents said that the Tribunal made the right decision. the Respondent daughter added that the redirection of the pension to the New Zealand bank account had been authorised by the Subject Person.
[14]
Consideration
This ground is based upon a misunderstanding of the Tribunal's reasoning. First, the offending sentence at [56] must be considered in context:
Should the appointment of the manager be reviewed?
56 I decided it was appropriate to review the appointment of [the Appellant son] and [the Appellant daughter] as [the Subject Person's] financial managers. There is ongoing discord between [the Subject Person's] children and the applicant, [the Respondent son], alleged the appointed financial managers are not making decisions in [the Subject Person's] best interests. The majority of [the Subject Person's] children are concerned about the current arrangements.
First, it is apparent that the Tribunal was considering only the exercise of discretion as to whether the appointment of the manager should be reviewed. The Tribunal was not making a final decision. Second, it is but one of the reasons given by the Tribunal for exercising the discretion to conduct a review, the others being the ongoing discord and the allegations made by the Appellant son. The Appellants do not complain that the discretion to conduct the review miscarried, they complain about the result of the review. There is no suggestion that the reason the Tribunal decided to appoint the NSW Trustee and Guardian was because that the view of the majority. It is plain from its reasons that it was because of the animosity between the children (see [77]).
This ground of appeal must also fail.
[15]
Ground 4(a) - the Tribunal erred in failing to afford procedural fairness to the Appellants in that it failed to have regard, or sufficient regard to the views of The Subject Person's carer
The Appellants allege that the Appellant son's wife was the Subject Person's unpaid carer and the Tribunal failed, as required by s 14(2)(a)(iii) of the Guardianship Act to have regard to her views.
The Respondent son alleged that the Appellant son's wife is not a carer within the meaning of the Guardianship Act and that she has a full-time job, she was not a party to the August 20 hearing as she would have been if she was a carer. The Subject Person has a paid full-time carer. In any event the Appellant son's wife was given an opportunity to speak at the August 20 hearing.
In reply, the Appellant son asserted that his wife does not have a full-time job, she works only 25 hours per week and provides care to the Subject Person at other times. The Subject Person does not have a full-time 24/7 work paid carer - as there is no paid carer after 4pm.
[16]
Consideration
The first issue to determine is whether the Appellant son's wife fits the statutory description of a person who "has the care of the person" (hereafter "a carer"). The relevant part of s 3D is as follows:
3D Circumstances in which a person "has the care of another person"
(1) For the purposes of this Act, the circumstances in which a person is to be regarded as having the care of another person include (but are not limited to) the case where the person, otherwise than for remuneration (whether from the other person or any other source), on a regular basis:
(a) provides domestic services and support to the other person, or
(b) arranges for the other person to be provided with such services and support.
(2) …..
(3) ….
A carer is required to be a party in a review of a guardianship order - see s.3F(3) - and in a review of a financial management order - see s. 3F(7). The Appellant son's wife was not a party to any of the three hearings. There is no mention of her being a carer in the reasons of August 2019 or December 2019. The Appellant son said this was because they did not know about the process and the importance of identifying the carer as a party. When it was suggested there was little or no evidence that she was a carer, he responded that she was never asked. When she tried to speak she was "cut short" - see excerpts from transcript in appellants submissions 6 October 2020 at page 2 para 23.
[17]
Consideration
We note that the mandatory requirement to take into account the views of a carer appears only in section 14 - in relation to the guardianship order - there is no such mandatory consideration concerning the appointment of a financial manager, so the only potential legal error relates to the guardianship order.
As to whether Appellant son's wife is a carer, the Tribunal has procedures to identify carers and parties. She was not identified by those procedures.
Of more importance is whether the Tribunal had sufficient evidence to identify her as a carer.
After listening to the sound recording, we conclude that there was insufficient evidence to identify her as carer because there was no evidence about the extent of care she provided. The evidence given about care provided to the Subject Person focussed on different aspects of care, mainly related to paid services (at 56.00 ff) and the difficulty posed to the paid carers if the Subject Person was permitted to stay with other siblings (at 1.05.10 ff).
Even if the Appellant son's wife had a view which, through error, she was not able to express, there is no evidence to persuade us that her views would have made a difference to the outcome.
This ground of appeal must fail.
[18]
Ground 4(b) - the Tribunal erred in failing to afford procedural fairness to the Appellants in that it "shut down" or failed to allow the Appellant son to give evidence regarding the alleged misappropriation of pension funds
The Appellants said this was an important issue that was not fully examined and decided upon. They argue this was a breach of procedural fairness - see excerpts from transcript in the Appellants submissions 6 October 2020 at page 3 para 35.
We have outlined above why this issue was not central to the decision making process because it had been decided previously.
The Tribunal was obliged to give the parties a reasonable opportunity to be heard: s 38(5) of the NCAT Act. It was not obliged to give the parties an opportunity to elaborate on matters which were irrelevant to the issues required to be determined.
[19]
Ground 4(c) - the Tribunal erred in failing to afford procedural fairness to the Appellants in that it devoted only one line in the reasons to the views of the Appellant daughter
The Appellant son said that the Tribunal failed to afford the Appellant daughter (who was a party and one of the previous financial managers) procedural fairness as evidenced by the single line it devoted to her in its reasons at [27]. The Appellant daughter asserted she was not given an opportunity to put her views at the hearing and was "cut short" by the Tribunal.
The Appellants argued the Appellant daughter was an important person in the Subject Person's life, as one of the previous financial managers and assisted her in financial matters for 19 years beforehand. She has sponsored the Subject Person in her permanent residency application to Australia. It was stated in all of the Tribunal reasons that the Subject Person wanted the Appellant daughter and the Appellant son to manage her affairs.
The Appellant daughter told us that for the August 20 hearing she submitted a one page submission dated 22 July 2020. We did not have that document but infer she expressed her view in that document.
The Respondents disputed that the Subject Person wanted the Appellant daughter and the Appellant son to be her financial managers, asserting that she was "just okay" with it. Next they said the Appellant daughter was given an opportunity to speak.
The Respondents also alleged that the Appellant son spoke for the Appellant daughter at the hearing. The Appellant son denied this.
[20]
Consideration
We understand from the appellants' arguments that this is a procedural fairness issue rather than a failure to give adequate reasons. Further, the Appellant daughter was only a party to the hearing about the financial management order so the issue of whether she was afforded procedural fairness relates to that part of the hearing.
At the invitation of the Appellants, we listened to the sound recording of the August 20 hearing. It reveals that (at 1.19.03) the Tribunal specifically requested the Appellant daughter view, which she gave without any apparent restriction.
There is nothing to suggest as claimed that that the Appellant Daughter was "cut short" by the Tribunal or not given a reasonable opportunity to speak or make submissions. The premise on which this grounds rests is not established.
This ground of appeal fails.
[21]
Ground 4(d) - the Tribunal erred in failing to afford procedural fairness to the Appellants in that it failed to have regard to the views of the Subject Person due to the failure of the separate representative to have an interpreter as the subject person does not speak English
The Appellants complaint is that they allege the subject person is unable to speak English so that when the Separate Representative appointed by the Tribunal under s 45(4) of the NCAT Act visited her prior to the hearing to ascertain her views, the Separate Representative was unable to communicate with her and was thus ineffective. For instance, the Appellants said, the Separate Representative did not obtain the Subject Person's views as to whether an outside agency should be appointed to manage her financial affairs and this should have been put to her to obtain her views. In effect they submit that the Tribunal failed to give the Subject Person an opportunity to speak or to have proper regard to her views.
The Respondents assert that their mother understands and can communicate in English. They said the Tribunal gave an adequate opportunity to their mother to explain her views. The Respondent daughter added that in effect, care should be taken with the views expressed by the Subject Person because she has reduced decision-making ability and tends to agree with matters suggested to her.
[22]
Consideration
We note that an interpreter in the Fijian Hindi language was provided for the Subject Person at the August 20 hearing.
The Tribunal detailed the Subject Person's views at [22] and [29] and considered the effectiveness of communication with her at [31] as follows:
31 ……. I had regard to the submissions made by [the separate representative] but note he did not have the benefit of an interpreter when speaking with [the Subject Person]. Although [the Subject Person's] English is limited, she was able to respond to some simple questions during the hearing in English. I was satisfied [the Subject Person] was able to express her views both at the hearing and to a Tribunal registry officer beforehand with the assistance of an interpreter.
We are satisfied by this finding that any lack of ability in the English language did not deprive the Subject Person of a reasonable opportunity to express her views.
While regrettable that the Subject Person did not have the benefit of an interpreter when she met with the Separate Representative it does not follow that the Tribunal failed to have regard to her views. We note that during the hearing (at 1.24.30) when asked by the Tribunal "who would you trust to manage your money?", the Subject person responded that she would discuss it with her children, her sons, and let the Tribunal know. She did not express strong opposition to an outside agency although such an outcome had been canvassed in the evidence in the minutes prior (at 1.19.00 ff).
This ground of appeal is not made out.
[23]
Ground 4(e) - the Tribunal erred in failing to afford procedural fairness to the Appellants in that it demonstrated actual bias against the Appellants
The Tribunal was obliged to afford the appellants procedural fairness: s 38(2) of the NCAT Act. As part of that obligation, the Tribunal was required to determine the reviews and any issue that might arise in its determination, without bias or the appearance of bias.
The appellants allege actual bias. They bear the onus of demonstrating actual bias. It is a heavy onus to discharge: per French J in Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87 at 106, 107, cited with approval by Gleeson CJ and Gummow J in Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 (Jia Legeng) at 520. An allegation of actual bias must be distinctly made, clearly proved and supported by cogent evidence. A finding of actual bias should not be made lightly: South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97].
In Jia Legeng, Hayne J explained at [183]:
"Bias" is used to indicate some preponderating disposition or tendency, a "propensity; predisposition towards; predilection; prejudice". It may be occasioned by interest in the outcome, by affection or enmity, or, as was said to be the case here, by prejudgment. Whatever its cause, the result that is asserted or feared is a deviation from the true course of decision-making, for bias is "any thing which turns a man to a particular course, or gives the direction to his measures" [citations omitted].
The Appellants allege the Tribunal was actually biased against them. The Appellant son said that the Tribunal had a closed mind and had decided there was too much family conflict before hearing any evidence.
In submissions in support of this ground, the Appellants' central argument was that the Tribunal failed to inquire into the alleged unauthorised re-direction of the Fiji Pension into a NZ bank account. This argument is not accepted for the reasoning outlined above, namely that the issue did not have to be dealt with as it had been previously decided.
As evidence of the claimed bias the Appellants allege the Tribunal's reasons for not examining this issue in detail were spurious. At [75] the Tribunal stated:
"..While the Tribunal was provided with documents from various authorities in Fiji and New Zealand, I could not be confident those documents were authentic given the claims and counter claims of fraudulent conduct by The Subject Person's children".
The Appellants say the reasons were spurious because there were "no counter claims". The Respondents disagree.
[24]
Consideration
We accept that there were counter claims. For example, claims were made against the Appellant son by the Respondent son and the Respondent daughter. These are referred to in the reasons at [58] and [59]. There were allegations that the Appellant son had falsified documents, lied to the Tribunal and sent false emails on behalf of the Subject Person.
The argument that bias is demonstrated in [75] is misconceived.
The Appellants assert that the audio recording of the hearing demonstrates bias on the part of the Tribunal. Having listened to the recording, we conclude that the Tribunal conducted the hearing in an even handed manner and gave all participants a reasonable opportunity to speak. It does not evidence favouritism or bias against the Appellants.
Apart from the matters discussed in other grounds (which have not been substantiated), the Appellants have been unable to point to any material which might support a finding that they were treated unfairly in any procedural or substantive way, or that the Tribunal was motivated by bias, malice or some other legally disabling factor. Nor were they able to point to any material to support their belief that for reasons of "bias" the Tribunal determined the matters other than on its merits.
In effect, the Appellants contend that that the only rational explanation for the member's decision not to delve into the alleged unauthorised re-direction of the Fiji Pension into a NZ bank account was that the Member was ill-disposed towards them. That contention appears to be another way of expressing the view that the decision was irrational and unreasonable. The Appellants' subjective belief that the decision under appeal was irrational and unreasonable might be genuine, but of itself is insufficient to support a finding that the Member was biased.
The allegation of actual bias is not established. This ground of appeal must be rejected.
[25]
Ground 5 - The Tribunal failed to have regard to a mandatory consideration regarding cultural issues
The Appellants argued that the Tribunal failed to take account of a mandatory consideration in that it failed to have regard to the Subject Person's cultural background. They claim that the Subject Person is a devout Hindu and in the Hindu culture it is the son who looks after the elderly parent and makes all the decisions rather than outsiders or strangers in government institutions.
The Appellant son alleged that the terms of his father's will were proof that the sons were responsible for caring for the elderly mother. A copy of that will was attached to the appellants' submissions. Despite telling us at the outset of the appeal hearing, that all of the material attached to the appellants' submissions had been before the Tribunal, the Appellant son could not confirm that the father's will was part of the evidence before the Tribunal. The Respondent son submitted the father's will was not part of the evidence before the Tribunal.
The Respondents dispute the Appellants submission, asserting that a son or daughter can take responsibility for a parent. The Respondent daughter said that the particular Hindu custom is more nuanced and requires closer evaluation to be stated with any clarity. In any event, she said, a son or daughter caring for an elderly parent should not be excluding the other siblings.
[26]
Consideration
This issue is mandatory when exercising the discretion as to whether a guardianship order should be made pursuant to s 14:
14 Tribunal may make guardianship orders
(1) …
(2) In considering whether or not to make a guardianship order in respect of a person, the Tribunal shall have regard to:
(a) … (b)
(c) the importance of preserving the person's particular cultural and linguistic environments, and
(d) …
The question of preserving cultural and linguistic environments is also one of the guiding principles in s 4 of the Guardianship Act:
4 General principles
It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles:
…
(e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,
…
The Tribunal considered and addressed the question of the Subject Person's cultural and linguistic environment at [23] of its reasons:
…She is a devout Hindu. I was satisfied that [the Subject Person's] cultural and linguistic heritage could be preserved whether or not guardianship was continued….
There was evidence upon which this conclusion could be reached because at [26] the Tribunal records that the subject person is living in the Appellant son's house with all necessary support services including a Hindi speaking carer.
The assertion that the Tribunal had before it material about the purported Hindu custom that the son bears responsible for ageing parent is not made out. The sound recording of the hearing reveals that issue was not raised during the hearing. Second, in the absence of agreement from the Respondents, we do not accept that the late father's will was before the Tribunal as evidence.
This ground of appeal is rejected.
[27]
Ground 6 - The Tribunal erred in making a factual finding for which there was no evidence
The Appellants submit there was no evidence to support the following finding at [31]:
[28]
"… [the Respondent son and the Respondent daughter] gave persuasive oral evidence at the hearing that their mother does not wish to return to the Appellant son's home on Saturday evenings after spending the day at [the Respondent son's house]..".
The Appellants contend that no evidence was presented to support this statement and the Tribunal did not verify it with the Subject Person during the hearing through the interpreter.
The Respondents say there was no error because there was evidence and the reasons at [31] records the Tribunal's summary of that evidence.
[29]
Consideration
Whether there is "no evidence" to support a factual finding is a question of law: Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 at [90] - [91]. Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 356. Acting without evidence includes acting without probative evidence: Bruce v Cole (1998) 45 NSWLR 163 at 188-189; Skiwing Pty Ltd v Trust Company of Australia [2006] NSWCA 276 at [52]. A decision maker will make an error of law where he or she makes a decision which has "no basis in the evidentiary material or which was contrary to the overwhelming weight of that material" or draws "inferences which were not properly open": Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [23] - [24].
The Tribunal had evidence upon which to base the finding that the Subject Person did not want to return to the Appellant son's home after spending the day with the Respondent son. The Tribunal was entitled to accept the oral evidence of the Respondent son and the Respondent daughter in this regard.
This ground of appeal fails.
[30]
Ground 7 - The Tribunal erred in that the decision was so unreasonable that no reasonable Tribunal could make it
To succeed on this ground, the Appellants must establish that the decision under appeal lacked "an evident and intelligible justification": Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (Li) [75], [76].
An exercise of a discretionary power which lacks "an evident and intelligible justification" can amount to an error of law: Li at. See also, GAR v Attorney General of New South Wales (No 2) [2017] NSWCA 314 at [154]. Similarly, a finding of fact which is "illogical" or "irrational" in that it was not open on the material before the Tribunal, or because there was no logical connection between that material and the inferences or conclusions drawn, might also give rise to a question of law: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [124] - [125].
Statutory framework
Before addressing the Appellant's arguments in support of this ground, we will examine the statutory framework which governed the exercise of the Tribunal's power to make the decision under appeal. We understood from the Appellants' written and oral material that this ground related to the appeal regarding the financial management order, not the guardianship order.
The power to make a financial management order can only be exercised if, after considering the person's capability to manage their affairs, the Tribunal is satisfied of the three matters listed in s 25G of the Guardianship Act, namely that: the person is not capable of managing their affairs, there is a need for another person to manage those affairs on the person's behalf, and it is in the person's best interests that the order be made. The Tribunal may order that a financial management order be reviewed within a specified time: s 25N of the Guardianship Act.
If the Tribunal makes a financial management order in respect of the estate (or part of the estate) of a person, the Tribunal may appoint a suitable person as manager of the estate. Alternatively, the Tribunal may commit the management of the estate to the NSW Trustee: s 25M of the Guardianship Act.
The orders available to the Tribunal on review of a financial management order are listed in s 25P of the Guardianship Act:
(1) On reviewing a financial management order under section 25N, the Tribunal:
(a) must vary, revoke or confirm the order, and
(b) if it considers it appropriate to do so may take such action with respect to the appointment of the manager of the protected person's estate as the Tribunal could take on a review of such an appointment under Division 3.
(2) The Tribunal may revoke a financial management order only if:
(a) the Tribunal is satisfied that the protected person is capable of managing his or her affairs, or
(b) the Tribunal considers that it is in the best interests of the protected person that the order be revoked (even though the Tribunal is not satisfied that the protected person is capable of managing his or her affairs).
(3) In this section, "vary", in relation to a financial management order, includes to exclude (or remove an exclusion of) a specified part of the protected person's estate from the order.
In making an order under s 25P of the Guardianship Act, the Tribunal must observe the principles listed in s 4 of that Act:
4 GENERAL PRINCIPLES
It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles:
(a) the welfare and interests of such persons should be given paramount consideration,
(b) the freedom of decision and freedom of action of such persons should be restricted as little as possible,
(c) such persons should be encouraged, as far as possible, to live a normal life in the community,
(d) the views of such persons in relation to the exercise of those functions should be taken into consideration,
(e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,
(f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,
(g) such persons should be protected from neglect, abuse and exploitation,
(h) the community should be encouraged to apply and promote these principles.
The obligation to have regard to these 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. (P v NSW Trustee and Guardian [2015] NSWSC 579 at [53]-[58]; ZGM v ZGN [2018] NSWCATAP 101 at [39]; ZBC v ZBD [2016] NSWCATAP 264 at [101], [105]).
[31]
Submissions on unreasonableness
The Appellants argued that the Tribunal focused too much on the conflict between the children. This arose largely because of the Appellant son's allegations about the alleged unauthorised re-direction of the Fiji Pension to a NZ Bank account. The appellants said conflict was to be expected in such circumstances. It was argued the decision to appoint the NSW Trustee & Guardian is likely to cause delays and disruptions to fund the services provided to the Subject Person including her Hindi speaking carer. Appointing the NSW Trustee & Guardian should have been the last resort.
The Respondents said that the decision was reasonable.
[32]
Consideration
The appellants have not identified an underlying jurisdictional error in the decision-making process. We understood that the appellants' argument relies on the second concept of legal unreasonableness, namely the complaint is about the outcome. The question then becomes whether there is lacking 'an evident and intelligible justification' for the decision under appeal.
We understood the appellant's argument to be about the decision revoke the appointment of the Appellant son and the Appellant daughter as well as the decision to appoint the NSW Trustee and Guardian in their place, which was in effect, the outcome of the review.
We consider the Tribunal's decision to revoke the appointment of the Appellant son and the Appellant daughter as financial managers did not, in the context of the statutory framework, lack "an evident and intelligible justification". This is because at [64] the Tribunal gave its reasons as follows:
64. While [the Subject Person's] estate is relatively modest, I formed the view that there is likely to be ongoing assertions of wrongdoing if [the Appellant son] and [the Appellant daughter] continue to manage their mother's affairs. While a level of dissatisfaction is not unexpected given the mistrust between [the Subject Person's children], involvement of police in multiple jurisdictions and initiation of civil proceedings is an indication of the exceptionally high level of antipathy in this case. This continuing tension is not in [the Subject Person's] best interests and is likely to cause her substantial distress. In addition, in light of the high level of animosity between the siblings, I consider it unlikely that [the Appellant son] and/or [the Appellant daughter] would sign documents to support a change of placement or service provision for their mother if the appointed guardian decided this was necessary. [the Appellant son] in particular presented as having very firmly held views about his mother's care needs and the inability of his brother and his sister, [the Respondent daughter], to adequately protect her safety.
We consider the Tribunal kept the welfare and interests of the Subject Person as its paramount consideration and provided a logical and intelligible reason for revoking the appointment of the Appellant son and the Appellant daughter.
When it came time to consider the appointment of a financial manager, the Tribunal was asked by the Respondent son to appoint him as financial manager. This was strongly opposed by the Appellant son and the Appellant daughter.
At paragraph [76] and [77] the tribunal gave its reasons for appointing a financial manager from outside the family. It said:
76. I formed the view that [the Respondent son] may also decline to sign service agreements or other contracts if he does not agree with the decisions made by the appointed guardian. This could result in delay of service provision and place [the Subject Person's] welfare and interests at risk.
77. In my view, an independent financial manager is required to make decisions in [the Subject Person's] best interests due to the animosity between her children. While acknowledging the appointment of an independent financial manager will result in increased fees payable by [the Subject Person] and additional administration for payment of services, [the Subject Person's] children are unable to manage her affairs informally and do not trust each other to do so, even under the supervision of the NSW Trustee and Guardian.
In our view this constitutes "an evident and intelligible justification" for the decision within the statutory framework. This ground of appeal fails.
[33]
Orders
The Appellants have not been successful on any ground of appeal.
We make the following orders:
1. The appeal is dismissed.
[34]
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: 17 February 2021