ZTO v Central Coast Local Health District

NCAT Appeal Panel|2021-02-01

What is this appeal about?

This is an appeal against a decision of the Guardianship Division of this Tribunal to make guardianship and financial management orders for ZTO. The appeal is brought by ZTO. He maintains that the Tribunal should not have made either a guardianship order or a financial management order for him.
ZTO is aged 72 years. He previously lived in an aged care facility, but for some time has been an inpatient at a hospital which is within the Central Coast Local Health District ('the Local Health District"). ZTO has been diagnosed with cognitive impairment and poor functional ability arising from a significant alcohol use disorder.

The guardianship proceedings and orders

On 7 October 2020, a panel of the Guardianship Division of the Tribunal ("the Panel") heard two applications concerning ZTO, being a guardianship application and a financial management application. The Panel accepted a neuropsychological report, a report from a Registrar in Geriatric Medicine and a report from the care manager of the facility where ZTO was then accommodated, as well as other evidence, as the basis for its decisions: 1. to make a continuing limited reviewable guardianship order for ZTO, under which the Public Guardian was appointed as his guardian for 12 months from 7 October 2020, with the authority to make decisions about his accommodation (with authority to engage the assistance of others to enforce its decisions), his health care and the services he needs and to provide substituted consent for his medical and dental treatment; and 2. to make ZTO's estate subject to management under the NSW Trustee and Guardian Act 2009, that is, to make a financial management order for him. The management of ZTO's estate was committed to NSW Trustee and Guardian ("NSW Trustee" or "the Trustee"). The Panel required the financial management order to be reviewed by the Tribunal within 12 months.

The appeal

ZTO appealed against both those orders. His case was in essence is that he did not think there was any justifiable basis for the appointment of either a guardian or a financial manager for him because, as he put it to us, "I can look after myself." The respondents to the appeal were the Local Health District, the Public Guardian and NSW Trustee.

Issues for determination on appeal and our decisions

The making of internal appeals is governed by Pt 6 Div 2 of the Civil and Administrative Tribunal Act 2013 (NSW) ("the NCAT Act"). The effect of s 80 and specifically s 80(2)(b) of that Act is that an appeal may be made as of right on a question of law, or with the leave of the Appeal Panel on any other grounds.
It therefore fell to us to decide: 1. whether, in reaching its decision to make the guardianship order and the financial management order for ZTO as described above, the Panel had fallen into legal error; that is, that its decision was based on an error of law. If we decided that there was such an error, ZTO's appeal would proceed as of right; 2. whether in any case we should grant ZTO leave to appeal against the making of either the guardianship or the financial management order; and 3. what orders we should make.
We decided that neither of the Panel's decisions (that is, to make the guardianship order and the financial management order) was based on an error of law and that ZTO should not be granted leave to appeal. We therefore ordered that the appeal be dismissed and leave to appeal be refused.
These are our reasons for those decisions.

Adjournment and appointment of guardian ad litem

At our first hearing, on 1 February 2021, we sought to contain from ZTO indication of the grounds upon which he had brought his appeal. It became obvious that ZTO was unable to understand our explanation of the appeal process or to formulate the grounds of appeal, other than by way of his general objection to the Panel's orders on the ground that they were unnecessary. He was unable to explain to us any grounds on which he asserted that the Panel had fallen into legal error or to explain whether he sought leave to appeal.
Because of that, and in light of the fact that it was uncontroverted that ZTO had disabilities, we decided that the only fair course was to adjourn the appeal hearing, in order to allow a guardian ad litem to be appointed to assist ZTO. We ordered accordingly. The tribunal subsequentially appointed Stephen Stuart as guadian ad litem for ZTO.
At the resumption of the hearing on 15 April 2021, Mr Stephen Stuart appeared as guardian ad litem. Mr Stuart confirmed that he is not an Australian legal practitioner.

Documentary material and the parties' submissions

In support of ZTO's case, we received and considered the Notice of Appeal and a copy of the Panel's reasons for decision.
In support of the cases of the 3 Respondents, we received and considered: 1. a copy of the Panel's Reasons for decision; 2. a brief reply from the Public Guardian, which simply reserved its right to make submissions should leave be granted to appeal; 3. a brief reply from NSW Trustee which indicated that the Trustee did not have a view on the appeal; and 4. documentation from the Public Guardian, including a bundle of documents purporting to be provided in compliance with section 58 of the Administrative Decisions Review Act 1997 ("the s58 bundle"). However, as we confirmed at the hearing, that Act has no relevance to these appeal proceedings, as this is not an administrative review of the decision by the Public Guardian or an appeal from such a review. Nevertheless, we read and considered certain of the documents in the s58 bundle, including a neuropsychological assessment report and the Geriatric Registrar's report, both of which had been relied upon by the Panel in making its decision. We did not consider the report from ZTO's general practitioner dated 14 January 2021, because that report was prepared after distribution of the Panel's decision and was not sought to be relied upon by any party as "fresh evidence" (that is, was not evidence that was now available but not reasonably available at first instance).
As indicated above, on 1 February 2021 we heard oral submissions from ZTO and on 15 April 2021 we heard from his guardian ad litem Mr Stuart and briefly from ZTO himself. We also heard submissions on behalf of the Public Guardian from Mr Tyrell, a Principal Guardian.

The position as explained by the guardian ad litem

Mr Stuart told us that he had the benefit of a reasonably detailed discussion with ZTO on the day of hearing and from that, his understanding of ZTO's case on appeal is as follows: 1. ZTO challenged all orders made by the Panel. 2. ZTO's case is that he does not need a guardianship order or a financial management order; that is, he does not need assistance in managing his person by way of decisions made by a formally appointed guardian and does not need his estate to be managed by a financial manager. 3. ZTO had said that he can manage his own person and his own financial affairs, particularly with the assistance of friends. Some of these friends are in Thailand.
Mr Stuart said that for his part he could not see that there had been an error of law, but he conceded that he was not legally qualified. He indicated that ZTO believed that the decisions were wrong; that is that they were not properly made. In answer to our questions Mr Stuart confirmed that he had not ascertained from ZTO any assertion that there had been a lack of procedural fairness by the Panel: ZTO believed that he had had a fair hearing. He confirmed however that ZTO had told the Panel and maintained the view that he did not need a guardian or a financial manager.

Obligation to assist an appellant to formulate alleged errors of law

In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 ("Prendergast") it was said, at [12], that where the appellant is unrepresented, it is appropriate for the Tribunal to approach the issue of whether there is a legitimate question of law in the appeal and the nature of any legal error: "…by looking at the grounds of appeal generally. It is necessary for the Appeal Panel to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent."
However, the Appeal Panel in that case went on to say that it is not its role to draft grounds of appeal for the appellant which have not been raised and then resolve them, unless the issues go to the jurisdiction of the Tribunal or are otherwise necessarily considered to resolve the appeal.
We were mindful however of the warnings in Cominos v Di Rico [2016] NSWCATAP 5 ("Cominos") that it can be difficult for self-represented appellants to express clearly their grounds of appeal or, (which is in many cases, even more challenging) to identify an error of law.
In Cominos, the Appeal Panel said, at [13]: "… 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… However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68])… Relevantly, s 38 (2) (of the NCAT Act) provides that the Tribunal 'may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice'."
As it was put, with perhaps understandable bluntness, by the High Court in Neil v Nott [1994] HCA 23; (1994) 121 ALR 148, at [5]: "A frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of the parties which are obfuscated by their own advocacy."
In our view, the need for the Appeal Panel to attempt to ascertain any question of law or grounds for leave to appeal is more likely to be justified in cases where an appellant who is legally unrepresented has a disability, especially one which affects their cognitive capacity. Of course that is a situation which often arises in guardianship appeals. That was the case here.
So, in accordance with the approach approved in those authorities and recent Appeal Panel decisions in guardianship appeals, such as ZGB v ZGC [2018] NSWCATAP 58 at [27]-[30] and ZAN v The Public Guardian [2016] NSWCATAP 20 at [25]-[27], we endeavoured to clarify the grounds of appeal and the nature of any alleged errors of law contended by ZTO, in particular, by asking how the Panel was perceived to have been in error.

Discussion with ZTO and the Guardian ad Litem

We spoke briefly to ZTO directly. It was difficult to ascertain from him the exact grounds on which he was appealing. However, two things were apparent from what he said. Firstly, although he did not understand the proceedings before the Panel he agreed that he had been afforded a fair hearing, Secondly, he had told the Panel why he did not need a guardian or financial manager and could not understand the Panel's conclusion that he needed both and he was opposed to those findings. That was consistent with what the guardian ad litem had told us: see above at [16].

What is an error of law?

In Prendergast at [13], the Appeal Panel of this Tribunal described the following questions as constituting questions of law: (1) whether the Tribunal had provided adequate reasons, which explain the Tribunal's findings of fact and how the Tribunal's ultimate conclusion is based on those findings of fact and relevant legal principle; (2) whether the Tribunal had identified the wrong issue or asked the wrong question; (3) whether it had applied a wrong principle of law; (4) whether there had been a failure to afford procedural fairness; (5) whether the Tribunal had failed to take into account a relevant (that is, a mandatory) consideration; (6) whether it had taken into account an irrelevant consideration; (7) whether there was no evidence to support a finding of fact; and (8) whether the decision was legally unreasonable.

Prendergast Grounds 5 and 6

A failure to deal with evidence may in appropriate circumstances be characterised as a failure to have regard to a relevant consideration or a failure to have regard to critical evidence (Prendergast grounds 5 and 6 respectively). It is generally not mandatory to consider particular evidence: Rodger v De Gelder [2015] NSWCA 211 at [86]. However, as observed in Cominos, the Tribunal is required by s 38(6)(a) of the NCAT Act: ".. to ensure that all relevant material is disclosed to (it) so as to enable it to determine all of the relevant facts in issue in any proceedings."
That obligation obviously includes an obligation on the Tribunal to have regard to material which has been disclosed to it and which is relevant to the facts in issue, at least where that material is of some significance.
Further, at common law, where a decision-maker ignores evidence which is critical to an issue and contrary to an assertion of fact made by one party and accepted by the decision maker, that is an error of law: Mifsud v Campbell (1991) 21 NSWLR 725 at 728; Eadie v Harvey [2017] NSWCATAP 201 at [61]-[62].

Formulation of grounds

We considered the documentary material and what ZTO and Mr Stuart as guardian ad litem had told us. We were mindful of the authorities as to the formulation or clarification of appeal issues for an unrepresented appellant as summarised at [17] and following above. Consistent with those principles and with our obligation under the Guiding Principle in section 36 of the NCAT Act to resolve the real issues in the proceedings justly, as well as quickly and cheaply, we discerned the following grounds that could be perceived to raise questions of law: 1. an asserted failure by the Panel in reaching its decision to make a guardianship and financial management orders, to consider ZTO's own views; and 2. an assertion that the Panel in reaching those decisions had wrongfully taken into account the expert evidence, which included the evidence of the Geriatrician, the Geriatric Registrar and the Clinical Manager who gave evidence at the hearing and the reports which they provided.

(1) The asserted failure to consider ZTO's own views

The statutory background

In considering the guardianship and financial management applications for ZTO, the Panel was exercising functions under the Guardianship Act. Section 4 of that Act requires anyone exercising such function with respect to people who have disabilities to observe certain principles (generally referred to as "the section 4 principles"). The principle out in paragraph 4 (d) is in the following terms: "(d) the views of such persons in relation to the exercise of those functions should be taken into consideration."
The reference to "those functions" is clearly to functions under the Guardianship Act.
So, there can be no doubt that the Panel, in considering the guardianship and financial management applications made for ZTO, was under an obligation to take into consideration ZTO's views in relation to both applications.
Additionally, in relation to the guardianship application, s14(2) of the Guardianship Act requires the Tribunal (here constituted by the Panel) to consider particular matters in deciding whether or not to make a guardianship order. Under s 14(2)(a)(i), the Tribunal is obliged to have regard to the views of the person who is the subject of the guardianship application.

Consideration

We concluded that, on any fair and reasonable reading of the Panel's reasons for decision, the Panel had not failed to take into account ZTO's views, in making either the guardianship order or the financial management order, for the following reasons. 1. In relation to the guardianship order, the Panel specifically acknowledged its obligation to have regard to ZTO's views at [23] of its reasons and set out briefly the views which ZTO had expressed at the hearing at [25], in the following terms: "[25] (ZTO) stated that he did not need a guardian. He stated that he would reduce his alcohol intake when discharged. His focus throughout the hearing was on his return to Thailand, has been denied him because of travel restrictions in place due to the Covid 19 pandemic." 1. So, ZTO's views were taken into account. The Panel noted that attempts had been made to provide better services in the community for ZTO, as efforts had not resulted any change to his alcohol consumption habits and this unfortunate and repeated cycle of "intoxication, fall, medication non-compliance, hospital admission". At [34] the Panel expressly noted that ZTO opposed making of a guardianship order. 2. In relation to the making of a financial management order, there is no equivalent of s14 (2); that is prescribed factors which the Tribunal must take into account before making an order. Instead, section 25G requires the Tribunal to be satisfied as to 3 things before making such an order. They are that: 1. the subject person is not capable of managing his or her own affairs; 2. there is a need for another person to manage those affairs on the subject person's behalf; and 3. it is in the subject person's best interests that an order made. 1. Additionally of course the s4(d) principle that the subject person's views should be taken into consideration clearly applies. 2. Although the Panel dealt somewhat more briefly with the financial management application than it did for the guardianship application is clear on any fair reading of its reasons for decision that it considered ZTO's views in determining that application. At [48] and [49] of its reasons the Panel cited ZTO's evidence. Additionally, the Panel recounted in its concluding paragraph, [62], that ZTO may after a period be in a position to manage his own finances and travel to Thailand "as this was a very important part of his life . That was clearly based on a consideration of ZTO's expressed views and that was the basis of the Panel's decision to make the order reviewable within 12 months.
There was no error of law in this regard.

(2) Assertion that the expert evidence had been wrongly taken into account

It is clear from the Panel's reasons for decision including the appendix that: 1. the following expert witnesses participated in the hearing: a specialist geriatrician, a registrar in geriatric medicine, a social worker and the clinical manager and care manager of the facility in which ZTO had been placed; 2. evidence was provided at the hearing by each of them (with the possible exception of the social worker, but at the least his written report appears to have been considered); and 3. that evidence, especially as summarised in paragraphs [16] to [20] of the reasons, was considered by the Panel in making its decision as to ZTO's capability of managing his own affairs and it appears also in relation to whether there was a need for another person to manage the affairs.
It is of course appropriate for evidence of that nature, if available, to be considered when the Tribunal, in dealing with a financial management application, considers the question of the person's capability of managing their affairs. So the evidence dealt with above was clearly relevant to the issues before the Panel and was proper and necessary for the Panel to consider.
Accordingly, there was no error of law in this regard.

Conclusion: Error of Law

It must follow that there has been no error of law by the Tribunal.

Principles governing grant of leave

The principles governing an application for leave to appeal under the NCAT Act are well-established and are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17. They are the same principles applied by the courts. In Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206 ("Smith"), the Court of Appeal said at [28] (citations omitted): "Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong."
In Collins v Urban at [84] the Appeal Panel adopted the factors suggested in Smith and suggested three additional circumstances where leave may be granted; namely where: 1. there has been an error that is plain and readily apparent, which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; 2. there has been a factual error that was unreasonably arrived at and clearly mistaken; or 3. the Tribunal has gone about the fact-finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result, so that it would be in the interests of justice for it to be reviewed.

Application of those principles here

We are unable to ascertain from the Tribunal's orders, its findings or its reasons for decision any issue of principle or any question of general public importance which would justify our granting leave to appeal. There is no injustice which is clear. There is no error by the Panel which is readily apparent, or is such that it would be unjust to allow it to stand and on the reasonable reading of the Panel's reasons for decision did not go about the fact-finding process in an unorthodox way so as to produce an unfair result.
On any reasonable analysis of the Panel's process of determination and its decision, as reflected in its reasons, it is clear is that it went about its fact-finding process in an appropriate and indeed in a thorough way.
Accordingly, there is no proper basis upon which leave to appeal should granted.

ORDERS

It must follow from our findings and conclusions above that the appeal should be dismissed and leave to appeal refused.
We ordered accordingly. 1. Leave to appeal refused. 2. Appeal dismissed.

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

Amendments 04 June 2021 - File number and Member names corrected 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: 04 June 2021

Trustee and Guardian Act 2009(NSW)

Guardianship Act 1987(NSW)ss 4, 14(2), 25G

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