ZPP v ZPO

Background to appeal

1. On 13 December 2010 ZPO appointed the appellant, his eldest son and his daughter-in-law as his attorneys pursuant to an enduring power of attorney (2010 enduring power of attorney). On the same date ZPO appointed the same family members as his enduring guardians.
2. Clause 6(a) of the 2010 enduring power of attorney (the "majority clause") provided as follows: My attorneys are authorised by this Power of Attorney to make decisions by way of simple majority in the event of three or more attorneys and in the event of two or less attorneys then unanimously.
3. The appellant and eldest son each lodged applications seeking review of the enduring guardianship appointment and the 2010 enduring power of attorney.
4. Following a hearing on 1 July 2019 (July 2019 hearing) the Tribunal confirmed the enduring guardianship appointment and dismissed the applications seeking a review of the enduring power of attorney.
5. In October 2019 the appellant lodged further applications seeking review of both appointments.
6. Following directions made in December 2019 and a decision by the Registrar in March 2020 to refuse requests by the appellant for summonses to be issued to various people, the hearing of both applications was listed for hearing on 26 March 2020 at a hearing venue in regional NSW.
7. Not long before the listed hearing date, the COVID-19 pandemic had been declared. The hearing went ahead but with all parties participating by telephone.
8. Following the hearing on 26 March 2020, the Tribunal confirmed the appointment of the appellant, the eldest son and the daughter-in-law as ZPO's enduring guardians. The Tribunal stated (at [35]) that: Having decided that there are no decisions required for [the appellant] that cannot be made under the enduring guardianship appointment, and that it is not in his best interest to revoke the appointment, we confirmed the appointment.
9. This finding was not challenged in this appeal.
10. In relation to the application to review the 2010 enduring power of attorney, the Tribunal made the following determinations: 1. Not to conduct a review of the making of the 2010 enduring power of attorney 2. To carry out a review of the operation and effect of the 2010 enduring power of attorney and as a result: 1. Remove the appellant from office as an attorney 2. Varied clause 6(a) of the 2010 enduring power of attorney so that it reads "My attorneys are authorised to make decisions unanimously".

ZPO's participation and views

1. We contacted ZPO by telephone and he spoke with us for a short time with the support of a staff member of the aged care facility in which he lives. ZPO's responses to our questions were very limited. After telling us that he did not know about this hearing or anything else about these matters, ZPO left the call shortly thereafter and did not take part in the remainder of the appeal hearing.
2. This was consistent with ZPO's limited participation in the hearing on 26 March 2020 in relation to which the Tribunal observed (at [15]) that: In our view [ZPO] had been provided with an opportunity to attend and put his view and his responses indicated he was unable to effectively participate and to comprehend the matters and there was little value in seeking further comment from him. Under those circumstances we were of the view that to seek further comment would risk causing him distress whilst not providing evidence to assist to determine the real issues before the Tribunal.

Appeal framework

1. The decision under appeal in this matter is an "internally reviewable decision" (CAT Act, ss 4 and 32(4)). A party may appeal an internally reviewable decision on any question of law or with the leave of the Appeal Panel on any other ground (CAT Act, s 80(2)(b)).
2. Section 81 of the CAT Act sets out the orders that may be made on appeal: 81 Determination of internal appeals (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following: (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when varying, or making a decision in substitution for, the decision under appeal.

The appeal

1. As the appellant was unrepresented by the time of the appeal hearing, we assisted him to refine his grounds of appeal following further clarification by the appellant in his written and oral submissions: see Neill v Nott [1994] HCA 23. As a result, the appellant confirmed the following constituted his grounds of appeal: 1. The Tribunal denied the appellant procedural fairness by refusing his request for an adjournment and because of the limitations it placed on the participation of the appellant's McKenzie friend (the "Denial of procedural fairness" ground) 2. The Tribunal was in error when it decided not to review the making of the 2010 enduring power of attorney because it should have accepted the appellant's evidence at the hearing that it was a fraudulent document (the "allegation of a fraudulent document" ground) 3. The Tribunal did not have all of the documents provided by the parties printed in front of them at the hearing (the "documents" ground)
2. In written submissions the appellant also raised an argument that the Tribunal below had no jurisdiction or power to remove the appellant as attorney on the basis that his father is incommunicate and s 33(3) of the Powers of Attorney Act 2003 applies, but withdrew this ground at the hearing of the appeal.
3. A denial of procedural fairness is a question of law: Italiano v Carbone [2005] NSWCA 177; Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 at [8]; John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13(4)].
4. Accordingly, if a denial of procedural fairness is established, the appellant has a right to appeal and leave to appeal is not required (CAT Act, s 80(2)(a)).
5. The remaining grounds of appeal necessitate the granting of leave to appeal (CAT Act, s 80(2)(b)).
6. The principles which govern the granting of leave to appeal are set out in Collins v Urban [2014] NSWCATAP 17 at [84]. The particular considerations relevant to the granting of leave in a protective jurisdiction are explained in a number of decisions (P v NSW Trustee and Guardian [2015] NSWSC 579, [190]-[198]; F v NSW Trustee and Guardian [2017] NSWSC 1319, [41]; SAB v SEM [2013] NSWSC 253, [8]-[10] (White J)).
7. In C v W [2015] NSWSC 1774, when discussing the principles relating to the granting of leave by the Court under cl 14(1)(b) of Sch 6 to the CAT Act, Lindsay J (at [44]-[46]) stated, relevantly, that [44] Secondly, if leave is to be granted pursuant to clause 14(1)(b) for an appeal on a ground other than a question of law, the Court generally needs to be satisfied that there is a question of principle or policy, or a manifest error in the decision or decision-making process under review, which merits a grant of leave: Collins v Urban [2014] NSWCATAP 17 at [82]-[84], qualified, in cases involving an exercise of the Court's protective jurisdiction, by observations made in P v NSW Trustee and Guardian [2015] NSWSC 579 at [191].

Replies to appeal

1. ZPO's eldest son and daughter-in-law took an active role in the appeal. Their position was that the Tribunal had not made any error by removing the appellant as one of ZPO's attorney and that the decision should upheld.

Denial of procedural fairness ground

1. The first way that the Tribunal was said to have denied the appellant procedural fairness was by not adjourning the hearing despite his request to do so.
2. The appellant said that the hearing should not have proceeded as there were witnesses that he wished to call who were not available; a large number of documents were filed and served by ZPO's eldest son and daughter-in-law the night before the hearing and the appellant did not have sufficient time to consider the documents; and, as we understood his submission, the hearing process was disorganised and inadequate as a result of being conducted by telephone.
3. The second way that the Tribunal was said by the appellant to have denied him procedural fairness was because of the limitations placed on the appellant's McKenzie friend to assist him in the hearing. According to the appellant, prior to the hearing day he had explained to Registry staff that he would need a support person at the hearing for reasons that he explained in correspondence with the Tribunal. He made arrangements for the same support person who assisted him at the July 2019 hearing to assist him at this hearing. He had made arrangements for his support person to attend in person with him at the hearing. However, due to the COVID-19 pandemic the hearing was changed to a telephone hearing shortly before the hearing date. Not only did the telephone hearing make it more difficult for the appellant to participate but his support person, due to the COVID-9 pandemic and her own health issues, could not be physically with him during the hearing and had to take part by telephone from a different location to the appellant. According to the appellant, the Tribunal placed limitations on his support person's ability to participate in the hearing. The Tribunal also restricted his ability to communicate with his support person and as a result impeded his ability to present his case.

Discussion

1. The Tribunal was obliged to comply with the rules of natural justice (CAT Act, s 38(2)), one aspect of which is conducting the hearing in a procedurally fair manner. The Tribunal was also required to "…take such measures as are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings" (CAT Act, s 38(5)(c)).
2. In Adamson v Ede [2009] NSWCA 379, Campbell JA (Giles and Hodgson JJA agreeing), referred to the content of the obligation of natural justice in court proceedings as follows: [59] Both in a court and in a tribunal, natural justice requires that a person be given a reasonable opportunity to present his or her case. However, as Gaudron J (with whom Dawson J agreed) pointed out in Re Association of Architects of Australia; Ex parte Municipal Officers Association of Australia (1989) 63 ALJR 298 at 305 (sub nom Re Coldham; Ex parte Municipal Officers Association of Australia (1989) 84 ALR 208 at 220): "… the fact that a hearing has taken place may have particular significance in determining whether or not the opportunity was given. As was pointed out by Deane J in Sullivan v Department of Transport (1978) 20 ALR 323 at 343, procedural fairness requires only that a party be given 'a reasonable opportunity to present his case' and not that the tribunal ensure 'that a party takes the best advantage of the opportunity to which he is entitled'. And it is always relevant to inquire whether the party or his legal representative should reasonably have apprehended that the issue was or might become a live issue: see Re Building Workers' Industrial Union; Ex parte Gallagher (1988) 62 ALJR 81 at 84; 76 ALR 353 at 358." (original emphasis) [60] The role of established procedures of courts, in deciding whether natural justice has been accorded to a litigant, is illustrated in Ex parte Fealey (1897) 18 NSWLR (L) 282 at 288 where Owen J (with whom GB Simpson J agreed) said: "A decision contrary to natural justice is where the presiding Judge or Magistrate denies to a litigant some right or privilege or benefit to which he is entitled in the ordinary course of the proceedings, as for instance where a Magistrate refuses to allow a litigant to address the Court, or where he refuses to allow a witness to be cross-examined, or cases of that kind." (emphasis added) [61] This principle stated by Owen J was applied in Ex parte Lucas (1910) 10 SR (NSW) 325 at 334 per Cullen CJ and in Ex parte Taylor; Re Butler (1924) 41 WN (NSW) 81 at 83 per Owen J, and was quoted by Gaudron and Gummow JJ in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at 98 [35].
3. See also Ritson v Commissioner of Police, New South Wales Police Force [2019] NSWCA 106, [25]-[27] (Gleeson JA).
4. In Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1, Gleeson CJ emphasised that "fairness is not an abstract concept" and that the "concern of the law is to avoid practical injustice" (at [37]).

Refusal of adjournment

1. A failure to grant a reasonable request for an adjournment can constitute procedural unfairness: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11, [40] (Gaudron and Gummow JJ).
2. The reasons given to us by the appellant as to why he believed that the Tribunal below should have granted an adjournment of the hearing were consistent with those given to the Tribunal as reflected in their Reasons for Decision. These are summarised as follows: 1. To allow support friends and other witnesses to attend the hearing and give evidence ([16(1) and [17(3)] 2. The appellant's recognised conditions affect his ability to cope with certain situations. He had "supportive networks" available for other hearings ([16(2)]) 3. A telephone hearing would not allow the Tribunal to "ascertain a clear picture" ([16(3)]) 4. Documents were provided by ZPO's eldest son and daughter-in-law shortly before the hearing and the appellant needed time to examine them (17]) 5. The appellant wanted a named friend who was assisting him in the capacity of a McKenzie friend to be physically present with him during the hearing but she was only available by telephone due to measures she had taken as a result of the COVID-19 virus
3. The Tribunal set out its conclusions concerning the application for an adjournment as follows (at [21]): We carefully considered the application for adjournment and reached the following conclusions: (1) In our view [the appellant's] submissions based on the unavailability of an in-person support person lacked weight for the following reasons: (a) The Tribunal's Directions of 4 December 2019 set the hearing down for 26 March 2020 in [a regional town]. The change from an in-person hearing to one conducted by telephone did not change the opportunity for [the appellant] to have a friend with him during the hearing. Had the hearing been conducted in person in [a regional town], [the appellant's] friend would have been in [a regional town] if she were to provide in-person support. The fact that [the appellant] was appearing by telephone from his location [in a regional area] made little difference to the travel needs of his support person. (b) If the person he initially chose to provide in-person support was unavailable due to the Covid 19 virus issues then it was open to [the appellant] to arrange for an alternative support person. There was no evidence that he had sought to do so. (c) [The appellant] was not prevented from being assisted by his preferred support person by telephone. We were able to include his support person in the conference call by which the hearing would be conducted and to provide opportunities for them to have confidential discussions upon request. (2) In respect of [the appellant's] submission that the hearing should be adjourned to allow other persons to attend and for other witnesses to involved: (a) Section 36 of the Civil and Administrative Tribunal Act 2013 establishes that the "guiding principle" for the Act and the Tribunal's procedural rules, in their application to proceedings in in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (b) As noted above applications for summonses in respect of the attendance of [X] and [Y] had been refused on the basis of lack of apparent relevance to the matters to be determined by the Tribunal. (c) It was possible for witnesses to give evidence by telephone if that evidence was considered to be relevant to the matters to be determined by the Tribunal. (d) Whilst hearings are open to the public the Tribunal has an obligation to provide an opportunity for parties to take part and represent their views. Parties were able to participate by telephone. To the extent that it was technically possible, other persons could be included in the hearing by way of a conference call. There were limits to the number of people who could be included in the conference call but had persons arranged to do so, they could have attended with a party and listened to the proceedings on speaker-phone. In our view, taking into account the guiding principle referred to above, the inability to directly include non-parties in the conference call by which the hearing was to be conducted was not a sufficient reason to adjourn the hearing. (3) Whilst it is preferable for parties to attend Tribunal hearings in person it is not unusual for the Tribunal to conduct hearings by telephone, and we were not concerned that we would be unable to deal with the matter in a hearing conducted by telephone, (4) There were a number of late documents submitted to the Tribunal by [ZPO's eldest son, his daughter-in-law and the appellant]. In our view, the additional material provided by [ZPO's eldest son and his daughter-in-law] did not constitute new evidence but collated that evidence in a new format. It was not complex and in our view was readily understood. If [the appellant] wished that specific material to be excluded from the Tribunal's consideration we were in a position to do so as the substantive matters to which the material referred were before the Tribunal. (5) The matters to be determined by the Tribunal have been long standing and the evidence and submissions of [ZPO's eldest son and his daughter-in-law] were to the effect that [ZPO's] financial affairs were at serious risk and action was required by the attorneys. Whilst that evidence and those submissions were to be tested in the hearing, it appeared at least on a preliminary view of the material that there was some urgency to determine the matters before the Tribunal. We considered that the potential risk to [ZPO's] financial best interests was such that there needed to be compelling reasons to adjourn the hearing. (6) Having considered the matters raised by [the appellant] and considering the issues raised by [ZPO's eldest son and his daughter-in-law] we were of the view that the we were able to fairly and effectively address the real issues before the Tribunal by way of a hearing conducted by telephone and that the hearing needed to proceed in the best interests of [ZPO]. Accordingly we refused the application for an adjournment.
4. The above extract indicates that the Tribunal below considered in detail the matters raised by the appellant in his request for an adjournment. Of particular note, the Tribunal examined the content of the late documents provided by ZPO's eldest son and daughter-in-law and concluded that the material did not constitute new evidence but collated evidence that had previously provided to the Tribunal in compliance with directions made on 4 December 2019 (at [21(4)]. The Tribunal below also specifically addressed the appellant's submission that the hearing should be adjourned on the basis that the support person acting in the role of a McKenzie friend could not be with him in person. The Tribunal noted that the change from an in-person hearing to one conducted by telephone did not change the opportunity for the appellant to have a McKenzie friend with him during the hearing; it was open to the appellant to arrange for an alternative support person to be present with him; and the appellant was not prevented from being assisted by his McKenzie friend during the telephone hearing (at [21(c)]).
5. Ultimately, the Tribunal placed weight on the evidence as to the need to proceed with the hearing in light of ZPO's financial circumstances, described as being at "serious risk" (at [21(5)]) and urgency surrounding the need to determine the applications before the Tribunal. The Tribunal concluded that "taking into account the allowances we made for [the appellant's] circumstances" it was in ZPO's "best interests" to proceed with the hearing (at [22(8)]). In doing so, the Tribunal had regard the principle set out in s 4(a) of the Guardianship Act that required the Tribunal below to give paramount consideration to ZPO's welfare and interests. We have been unable to identify any error in the manner in which the Tribunal weighed the matters raised by the appellant in support of his application for an adjournment against the need for the hearing to proceed in ZPO's interests.
6. We conclude that the obligation to afford natural justice in the manner in which the Tribunal dealt with the appellant's request for an adjournment was not breached by the Tribunal. There was no practical injustice caused to the appellant and this aspect of the denial of procedural fairness ground fails.

McKenzie friend

1. In its written reasons the Tribunal below acknowledged the practical difficulties posed by a telephone hearing in relation to the involvement of the appellant's support person as a McKenzie friend in the proceedings (at [22]). It specifically noted the steps it took in response to these difficulties including: 1. Providing opportunities for private discussion between the appellant and the McKenzie friend by standing down the proceedings as needed ([21(1)(c), 22(2) and (4)]) 2. When the McKenzie friend became unavailable for part of the hearing, including a substitute support person in the hearing ([22(3)])
2. The Tribunal below also noted that it was open to the appellant to have arranged for an alternative support person if the person he initially chose was unable to provide in person support due to her health issues in relation to the COVID-19 virus ([21(1)(c)]).
3. We note in this regard that the obligation placed on the Tribunal was to ensure that the appellant was given a reasonable opportunity to present his case. It was not under an obligation to ensure that he took "the best advantage of the opportunity to which he is entitled" (Sullivan v Department of Transport (1978) 20 ALR 323 at 343).
4. At an Appeal Panel callover on 21 May 2020, the parties were directed to file and serve the sound recording of the hearing at first instance if what happened at the hearing was being relied on and a typed copy of the relevant parts. The appellant did not provide a sound recording or transcript in support of his submission that he was unable to present his case fully because of this issue.
5. The reality is that the appellant did in fact have a McKenzie friend support him at the hearing as well as a substitute McKenzie friend to support him when the first McKenzie friend became unavailable. The circumstances in which the proceedings were conducted, namely by telephone, were not the arrangements originally made but were necessitated by the COVID-19 pandemic. The fact that the McKenzie friend was unable to provide support to the appellant in person but had to do so by telephone was outside the Tribunal's control. The written reasons of the Tribunal also noted that whilst it is preferable for parties to attend hearings in person it is not unusual for hearings to be conducted by telephone (at [21(3)]).
6. We concluded that there was no practical injustice caused to the appellant and this aspect of the denial of procedural fairness ground fails.

Allegation of a fraudulent document

1. The appellant asserts that the 2010 enduring power of attorney that was provided in evidence to the Tribunal below is a fraudulent document and is not the document that ZPO signed in 2010. The appellant asserts that ZPO's daughter-in-law was not included by ZPO as an attorney in the document that ZPO had prepared and signed and that the daughter-in-law's details were added subsequently to the 2010 enduring power of attorney being executed.
2. The appellant's submission is that the Tribunal below erred when it decided not to review the making of the 2010 enduring power of attorney because it should have accepted the appellant's evidence at the hearing that it was a fraudulent document. We understood from this submission that the appellant asserts that the Tribunal below failed to give sufficient weight to the appellant's evidence in this regard.
3. This evidence was put to the Tribunal below and it findings are set out in the written reasons as follows (at [49]): 49 We decided not to conduct a review of the making of the enduring power of attorney for the following reasons: (1) [The appellant] submitted that when he signed the enduring power of attorney, [ZPO's daughter-in-law] was not mentioned as an attorney. He provided no objective evidence in support of that submission. (2) In the absence of further evidence we looked to the document and in our view, in its construction, the enduring power of attorney provides for the appointment of three attorneys in that it includes the clause authorising the attorneys to make decisions by a simple majority where three or more attorneys are appointed. (3) [The appellant] also submits that [ZPO's daughter-in-law's] acceptance of the appointment may be invalid because the date of her signature is changed from 2010 to 2011 and the change is not initialled. In respect of that matter we note that the same situation occurs in respect of the changed date (2010 to 2011) for the signature of [ZPO's eldest son]. (4) [ZPO's eldest son and daughter-in-law] accepted their appointments in January 2011 whilst the appointment was made in 2010 and [the appellant] accepted his appointment in 2010. In our view this is the reason for the altered date. The alteration is not initialled but occurs within the same block as the signature. We consider that initials occurring next to the date in the same block as the full signature would add little to the legitimacy of the date change. (5) The enduring power of attorney was registered at the Land Registry Services on 16 May 2018 and the attorneys have been acting in accordance with the appointment. No issue has previously been raised about the validity of [ZPO's daughter-in-law] acceptance of the appointment. (6) In our view, further examination of the matters raised by [the appellant] is unlikely to provide a sufficient basis on which to make an order about the making of the enduring power of attorney. For that reason, we declined to embark on a review of the making of the instrument.
4. Other than the appellant's assertion, there was no other evidence before the Tribunal below to support his submission that the 2010 enduring power of attorney document was not the document actually signed by ZPO.
5. In his Notice of Appeal, and supplemented by his written and oral submission, the appellant asserted that there is a NSW Police fraud investigation into the authenticity of the document. The appellant submitted that we take this into account in determining this appeal and provided us with a copy of NSW Police documents recording these matters. These documents (Event reports dated 1 and 3 May 2020) were the result of complaints made by the appellant to the police and came into existence after the date of the hearing on 26 March 2020.
6. A party seeking to adduce fresh evidence in an appeal may only do so with the leave of the Appeal Panel and in accordance with well-established principles (Building Professionals Board v Hans (2008) NSWADTAP 13 at [54]). The documents did not exist at the time of the hearing and could not therefore have been taken into account by the Tribunal below. Whilst we declined to allow this fresh evidence to be tendered, we note that rather than there being an ongoing NSW Police fraud investigation, the NSW Police documents state that "Unless [the appellant] can produce the original documents, police are unable to ascertain whether either document has been appropriated".
7. On the basis of the evidence available to the Tribunal below, it was entitled to reach the conclusion that it did in relation to the appellant's assertion about the authenticity of the document. We note in particular the view expressed by the Tribunal below about the majority clause (at [49(2)] to the effect that the appellant's assertion that ZPO's daughter-in-law was not named as an attorney by ZPO would appear to be inconsistent with the terms of the majority clause that provided that the attorneys, if not agreed, could act by majority.
8. We conclude that there was no question or principle or policy raised, or manifest error in the decision or decision making process under review, which merits a grant of leave (C v W [2015] NSWSC 1774, [44]; Collins v Urban [2014] NSWCATAP 17, [82]-[84]).
9. Leave to appeal on this ground is refused.

Documents

1. The appellant asserted that the Tribunal did not have all of the material provided by the parties available to it on the day of the hearing. The appellant told us that he did not think that the Tribunal below had the opportunity "to get their teeth" into the material and were not sufficiently familiar with all of the issues raised in the matter.
2. The appellant did not provide a sound recording or transcript in support of his submission that the Tribunal did not have relevant material before it on the day of the hearing or indicated by way of their questioning that they were not sufficiently prepared for the hearing.
3. Even in the event of the Tribunal not having printed copies of all of the material filed in these proceedings, it is not to say that the Tribunal did not have electronic version of filed material.
4. We conclude that there was no question or principle or policy raised, or manifest error in the decision or decision making process in this respect, which merits a grant of leave (C v W [2015] NSWSC 1774, [44]; Collins v Urban [2014] NSWCATAP 17, [82]-[84]).

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: 24 December 2020