ZOZ v ZPA

[2020] NSWCATAP 121

NCAT Appeal Panel|2020-05-26

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At a glance

Source facts

Court

NCAT Appeal Panel

Decision date

2020-05-26

Source

Original judgment source is linked above.

Judgment (24 paragraphs)

[1]

Overview

Mrs X lives in an aged care facility in regional New South Wales. She has been diagnosed with advanced dementia. She needs someone to make decisions about her finances and about other things like who should be allowed to visit her and what services and health care she should receive. Mrs X has two adult children, ZOZ and ZPB. Her husband died in 2018.
ZOZ and ZPB were joint guardians under an enduring guardianship appointment that Mrs X had made when she had the capacity to do so. On 10 June 2018, the Tribunal made a guardianship order appointing the Public Guardian for 12 months. That order suspended the joint guardians' authority to make decisions for Mrs X for that period: Guardianship Act 1987 (NSW), s 61. The order gave the Public Guardian power to make decisions for Mrs X about her access to others, accommodation services, health care and medical treatment. A year later, in June 2019, the Tribunal reviewed the order and renewed it for another 12 months. On that occasion everyone agreed that the guardian should be the Public Guardian. ZOZ did not appeal from that decision.
Three months later, ZOZ requested a review of the order because she wanted to be appointed as her mother's guardian. The Tribunal reviewed the order in December 2019 and decided to keep in place the existing guardianship order that had appointed the Public Guardian for 12 months. ZOZ has appealed to the Appeal Panel from the Tribunal's December 2019 decision. For the reasons we give below, we have dismissed that appeal.
About a month after ZOZ applied to the Tribunal for a review of the guardianship order, the Facility Service Manager of the aged care facility where Mrs X lives (ZPA) applied for a financial management order. At that time, ZOZ was her mother's attorney under an enduring power of attorney Mrs X had made in 2014. ZPB had been a joint attorney but had resigned after he became bankrupt.
The Tribunal heard the application for a financial management order at the same time as ZOZ's application to be appointed as her mother's guardian. The Tribunal decided to make a financial management order and to commit the management of the estate to the NSW Trustee and Guardian. The main questions were whether there was a need to make a financial management order and, if so, whether it was in Mrs X's best interest for an order to be made. The making of the financial management order had the effect of suspending the operation of the power of attorney made in 2014 and ZOZ's authority under it as the remaining attorney, for the duration of the financial management order: Powers of Attorney Act 2003 (NSW), s 51(3).

[2]

Parties

When these matters were listed for hearing, there was only one proceeding with ZOZ named as the appellant, the Facility Service Manager of the Aged Care Facility as first respondent, ZPB as second respondent and the Public Guardian as third respondent. In fact, there are two proceedings - the appeal from the guardianship order and the appeal from the financial management order. Each proceeding has separate parties. The Appeal Panel inadvertently failed to advise Mrs X and the NSW Trustee that they were parties to the Appeal Panel proceedings.
The parties to an appeal include "any person or body (other than the appellant) who was a party to the proceedings before the Tribunal at first instance." Civil and Administrative Tribunal Rules 2014 (NSW), rule 29(b). The parties to the application for review of the guardianship order were ZOZ (the person who requested the review), Mrs X (the person the subject of the order), ZPB (the enduring guardian) and the Public Guardian: Guardianship Act, s 3F(3). Consequently, the parties to the appeal from the guardianship order are ZOZ (the appellant), ZPB (the first respondent), Mrs X (the second respondent) and the Public Guardian (the third respondent).
The parties to the application for financial management were the Facility Service Manager of the aged care facility (the applicant), Mrs X (the person to whom the application relates), ZPB (the person appointed attorney by Mrs X under a power of attorney that is in force) and the NSW Trustee: Guardianship Act, s 3F(5). The parties to the appeal from the financial management order are ZOZ (the appellant), ZPA (the first respondent), who is the Manager of the aged care facility who was a party because she had been a party to the financial management application, Mrs X (the second respondent), ZPB, who was a party because he had been a party to the financial management application (the third respondent) and the NSW Trustee and Guardian as appointed manager of Mrs X's estate (the fourth respondent).
We are obliged "to ensure that each of those parties has a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings": Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 38(5)(c). To remedy the mistake in failing to give Mrs X and the NSW Trustee and Guardian that opportunity, we made the following directions: 1. By 12 June 2020, Mrs X and the NSW Trustee and Guardian are to send to the Appeal Panel, with a copy to each other party, an answer to the following questions: 1) Do you wish to be heard or otherwise have your submissions considered in the proceedings? 2) If so, do you wish to do so: a. By providing written submissions to the Tribunal and the other parties with no further hearing; b. At a reconvened telephone hearing with all the parties' present; c. By some other means? 2. By 19 June 2020 each other party is to send to the Appeal Panel, with a copy to each party, its response to any proposal by Mrs X or the NSW Trustee. 3. Subject to any views of the parties as to whether an interlocutory hearing is necessary, the Appeal Panel will consider any proposal by Mrs X or the NSW Trustee and Guardian, 'on the papers' and advise the parties of its decision. Note: If, by 12 June 2020, there is either no response or a response that the party does not wish to be heard, the Appeal Panel will proceed to determine the appeal. If either of the parties wish to be heard, the Tribunal will decide how that it is occur.
We did not receive a response from Mrs X or from the NSW Trustee and Guardian. The Public Guardian re-filed their Reply. Having given the omitted parties a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings, we have decided to make a decision without any input from those parties.

[9]

Failure to rely on evidence from previous hearings

ZOZ submitted that the Tribunal should have relied on all the evidence provided by the parties at previous Tribunal hearings involving Mrs X on 25 July 2018, 17 April 2019 and 20 June 2019. She said the Tribunal refused to acknowledge information from prior hearings.
At [20] of the Tribunal's reasons, the Tribunal summarised its approach to the evidence in the previous hearings: In her submissions ZOZ raises issues about the documents provided at previous Tribunal hearings and previous decisions of the Tribunal. The current hearing is a review of the order in the context of current circumstances and is not in the nature of an appeal about previous decisions. The material considered in previous matters was not brought forward to the current hearing and was not considered by the Tribunal on this occasion.
At [30], the Tribunal added that: With the exception of complaints about recent decisions of the Public Guardian, we were of the view that the substance of the matters raised by ZOZ had been considered by the Tribunal when it made the order in June 2019. We were not able to discern in the current material and oral presentations, any additional material regarding Mrs X' current circumstances that would indicate that it is in her best interests to revoke the appointment of the guardian and to appoint a different guardian.
It is not the Tribunal's role when reviewing a guardianship order or when considering a further application for financial management, to review the evidence in previous proceedings. The issues must be determined in relation to the state of affairs as at the hearing date. For example, in relation to an application for financial management, one issue is whether an order is in the best interests of the subject person at the time of the hearing and for the reasonably foreseeable future: McD v McD (1983) 3 NSWLR 81 at [86]; Re W and L (Parameters of Estate Management Orders) [2014] NSWSC 1106 at [20]. If circumstances have not changed since a previous hearing, then the findings of the Tribunal at that time will be relevant. The Tribunal took into account several of the previous Tribunal's findings of fact, some of which are addressed in more detail below.

[12]

Appeal on other grounds

ZOZ has asked for permission to appeal from some of the factual findings the Tribunal has made. If a person wishes to appeal on questions other than questions of law, such as the factual findings, he or she needs to obtain the Appeal Panel's permission to do so: NCAT Act, s 80(2) (b). If a person appeals from a factual finding, generally the Appeal Panel will look at the evidence provided to the Tribunal, and the Tribunal's findings based on that evidence. For example, if the Tribunal has made a mistaken factual finding or has gone about the fact-finding process in a way that it is likely to produce an unfair result, the Appeal Panel may give the appellant permission to appeal: NCAT Act, s 80(2)(b) and Collins v Urban [2014] NSWCATAP 17 at [84].
Several findings of fact at [27] of the decision, led the Tribunal to conclude that ZOZ was not able to act objectively as the guardian and, impliedly, that she was unable to act in accordance with the principles in the Guardianship Act. The Tribunal found that ZOZ's lack of objectivity was apparent based on five findings of fact. We have highlighted the findings with which ZOZ disagrees: 1. Her lack of regard to the views of Associate Professor Brennan regarding Mrs X' diagnosis and treatment; 2. Her failure to bring to the notice of the Tribunal that convened on 20 June 2019, the report of Associate Professor Brennan and to objectively critique his views, even if she disagreed with them. 3. Her failure to seek written reasons for the decisions of the Public Guardian with which she disagrees and to take advantage of the processes established to deal objectively with differences of opinion, even after she was advised about those processes; 4. In our view the evidence, statements and submissions provided by ZOZ indicate that her views about aspects related to her mother's care differ from those of the Public Guardian and others. There are established processes for dealing with such differences of opinion and for challenging decisions made by the Public Guardian and seeking independent review of those decisions; 5. ZOZ's emails to the Public Guardian challenge the decisions and processes of the Public Guardian and the appropriateness of the aged care facility. However, they do not indicate alternative proposals with adequate detail to be assessed by the guardian as part of an objective decision making process.
The Tribunal added that ZOZ "vigorously asserts her views without taking into account other views or seeking independent review of the Public Guardian's decisions. That characteristic suggests that she would make decisions in accordance with her views and without proper regard to the views of others."
Below we consider each of ZOZ's challenges to the highlighted findings.

[14]

Failure to bring to the notice of the Tribunal that convened on 20 June 2019, the report of Associate Professor Brennan

In considering the appropriateness of appointing ZOZ as Mrs X's guardian, the Tribunal took into account some of the previous Tribunal's findings from the 20 June 2019 hearing. At that hearing, the Tribunal decided to make a further guardianship order for 12 months and to appoint the Public Guardian as Mrs X's guardian. At [21] of that decision, the Tribunal found that: ZOZ has sought that a full assessment of her mother's health condition be undertaken because of concerns regarding the diagnosis and cause of her mother's cognitive condition. She attempted to take her mother to an appointment at St Vincent's hospital in Sydney, but her mother refused to attend the appointment.
At the 20 June 2019 hearing, the Tribunal did not have before it the report of A/Prof Brennan which had been written one month earlier - on the 20 May 2019. The Tribunal hearing the matter in December 2019 made an adverse finding against ZOZ at 27(b) about her failure to bring that report to the notice of the Tribunal and to objectively critique A/Prof Brennan's views, even if she disagreed with them.
At [22], the Tribunal made the following findings about A/Prof Brennan's assessment, with our emphasis: 1. The assessment pre-dates the Tribunal's hearing on 20 June 2019. The Reasons for Decision of that Tribunal indicate that ZOZ advised at that hearing that she had attempted to take Mrs X to an appointment at St Vincent's Hospital but her mother had refused to attend the appointment and she still sought a full and comprehensive assessment of her health condition. There is no indication in the Reasons for Decision that ZOZ advised the Tribunal that Associate Professor Brennan had completed an assessment or of his views. 2. During the hearing, ZOZ denied keeping the details of the assessment by Associate Professor Brennan from the Tribunal and asserted that others had access to his letter and could have provided it to the Tribunal.
We understand the reference to "others" who had access to the report to include a reference to ZPA, the Facility Service Manager.
ZOZ denies that she failed to bring to A/Prof Brennan's report to the notice of the Tribunal that convened on 20 June 2019. ZOZ did not give the Appeal Panel that part of the transcript where this issue was discussed in the current Tribunal proceedings. Without the transcript evidence, it is not possible to determine whether the Tribunal's finding that ZOZ failed to bring the report to the notice of the Tribunal that convened on 20 June 2019, was open on the evidence. On that basis we refuse to give permission for ZOZ to appeal from this finding.
ZOZ attempted to tender a great deal of fresh evidence on appeal. Strict requirements surround the admission of evidence on appeal that was not before the Tribunal at the hearing. Fresh evidence can only be taken into account in very limited circumstances. In ZBC v ZBD [2016] NSWCATAP 264 (14 December 2016) the Appeal Panel stated at [32]: If the Appeal Panel is to exercise its discretion in favour of the party applying for leave, it must be "affirmatively satisfied" that, having regard to the findings of the Tribunal at first instance, the further evidence, if tendered at the hearing conducted by the Tribunal was "likely to have produced a different result" (Building Professionals Board v Hans [2008] NSWADTAP 13, at [54]; ZCK v NSW Trustee and Guardian [2016] NSWCATAP 200, at [25]).
Applying that test, we have not taken into account any of the new or fresh evidence ZOZ purported to file. However, she did provide one item of evidence that warrants closer consideration. ZOZ provided to the Appeal Panel an email addressed to her and dated 27 May 2019 from NSW Cardiology attaching A/Prof Brennan's report. In her written submissions to the Appeal Panel ZOZ asserted that: It was only after the Public Guardian made these allegations (that she withheld the specialist medical opinion in regard to Mrs X) that ZOZ conducted a search through her email account and discovered on August 30 2019 the original email sent to her by the reception at NSW Cardiology that contained Ass Prof Brennan's reports. This email was dated 27 May 2019. (Words in brackets added.)
We have decided not to admit the email or ZOZ's evidence about when she received it because that evidence was available at the time of the hearing in December 2019 and, even if admitted, is not likely to have produced a different result. Even if the Tribunal had that evidence and found that ZOZ had not opened the email until 30 August 2019, the Tribunal is likely to have made the same ultimate decision. The failure to bring A/Prof Brennan's report to the notice of the 20 June 2019 Tribunal was one of many reasons for doubting ZOZ's objectivity. Even without that finding, there were several other examples which, taken together, support the Tribunal's finding that ZOZ is not "able" to exercise the functions conferred by the proposed guardianship order.

[22]

Findings of fact

ZOZ challenged the Tribunal's finding that her evidence was "inconsistent or confused." In particular, she challenged the following passage from the Tribunal's decision at [41]: In her application, accompanying documentation and oral submissions, ZPA indicates that: 1. … 2. … 3. She met with ZOZ previously about this issue (the RAD and the DAP) and has attempted subsequently to deal with the issue in emails and has invited ZOZ to discuss the matter in a face to face meeting. However, ZOZ has not agreed to meet and has not provided a written response to the emails.
ZOZ submitted that ZPA did not provide any evidence of her communications about the statements and invoices she had provided. As we have said, she is not obliged to do so, and it is not an error for the Tribunal to accurately record her oral evidence. ZOZ provided a transcript of the evidence on which the Tribunal's summary was based: ZAP: So, on several occasions tried to have face to face discussions and invited via email . . .at the early stages, admitted to our service we just managed to have one face to face meeting but at the time it wasn't monetary issues, it was around care. But it doesn't matter how many times we ask that person to come and have a discussion with us or to offer us, even in writing how they might manage it moving forward, we're not getting an outcome.
On close examination, it appears that the Tribunal was incorrect to suggest that ZAP's evidence was that she had met with ZOZ face to face about the payment of the RAD and the DAP. Rather, she had met with her face to face about care issues. Otherwise, in our view, the Tribunal accurately summarised ZAP's oral evidence. That minor error is not a reason to give ZOZ permission to appeal. Even if that factual mistake had not been made, the Tribunal is likely to have come to the same conclusion.
The Tribunal also recorded ZOZ's evidence on this issue at 43; She has managed her mother's affairs as her attorney and the only outstanding issue was the payment of the DAP (Daily Accommodation Payment). She has not received a request to pay the amount and has only received statements from the facility. She has asked for details about the DAP including how the money would be used and believes that she is entitled to that information prior to making the payment.
For the reasons we have given in the appeal from the guardianship decision in relation to fresh evidence, we have not taken into account ZOZ's evidence on appeal that ZAP did not attempt to contact her by email or arrange a meeting with her.
ZOZ extracted an exchange between the presiding Tribunal member and herself about the communications with the aged care facility over the payment of the RAD and the DAP. ZPA's evidence was that despite sending ZOZ accounts via post and email, the fees have not been paid. On the basis of this, and other evidence, the Tribunal concluded that they were "not able to rely on the evidence of ZOZ as we found her statements to be inconsistent or confused."
The Tribunal did not make a finding as to the precise nature and extent of the communications between ZOZ and ZPA. But one of the reasons the Tribunal gave for making a financial management order was the fact that ZOZ had not turned her mind to the issue of whether there would be an advantage to her mother's estate in prompt payment of a RAD instead of maintaining the Term Deposit. As well, the Tribunal found ZOZ's evidence to be unreliable. We refuse to give ZOZ permission to appeal from the Tribunal's factual findings and conclusions on this issue.