ZTU v ZTV

[2021] NSWCATAP 121

NCAT Appeal Panel|2021-04-09

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Source facts

Court

NCAT Appeal Panel

Decision date

2021-04-09

Source

Original judgment source is linked above.

Judgment (23 paragraphs)

[1]

Date of Decision: 19 October 2020 Before: K A McMahon, Senior Member (Legal) S Flanagan, Senior Member (Professional) D R Sword, General Member (Community) File Number(s): NCAT 2020/00249417

[2]

What is this appeal about?

This is an appeal against guardianship and financial management orders made for ZTV on 19 October 2020.
ZTV is aged 58 years and is originally from regional Queensland. He had hypoxic brain injury at birth and learning difficulties in childhood. As a young man he met and married his wife ZTU and they commenced married life in Queensland. They had four children who are now adults, including their daughters ZTW and ZTX.
In the past, ZTV has had problems with heavy alcohol use. In 2014 he had a stroke which resulted in right-sided weakness and difficulties with mobility. He had a transient ischaemic attack in 2019 and his cognition and ability to function deteriorated from that time.
With assistance from ZTU, ZTV applied to the National Disability Insurance Scheme ("NDIS") and was accepted. He received an NDIS plan and services.
For some time ZTV lived in community housing in another suburb in regional Queensland where he experienced increasing agitation and displayed increasing aggression. As we understand it, two or three years ago there was deterioration in his marital relationship and ZTU began to reside in separate accommodation at times. In August 2020 ZTV was moved to supported accommodation on the far North Coast of NSW which was managed by an aged care service provider and he continues to live there.

[7]

Adjournment application

ZTU asked us to adjourn the hearing for two to three months. She told us that she had not had enough time to prepare for the hearing, that she did not bring her copy of the Notice of Appeal to this hearing, that she wanted more time to prepare a transcript of parts of the original hearing and that she wanted legal advice on her position.
We decided to refuse the application for adjournment, for the following reasons: 1. We were satisfied that ZTU had been provided with all materials necessary for her to prepare her case. Her opening position was that she had not been provided with any paperwork whatsoever by other parties, but that was clearly not the case. ZTU insisted that she had not received the written submissions and statements made most recently by ZTV, ZTW and ZTX. Despite some indications in the Tribunal file that they had been sent to her, we told the participants that we would not rely on those documents, nor on the recent report from Dr Z, but that we would hear oral submissions from ZTV and ZTW ( ZTX being unavailable to participate). 2. We found ZTU's contention that she had not had sufficient time to prepare to be implausible. The Notice of Appeal was lodged on 22 December 2020. There had been Directions Hearings on 23 December 2020, 11 January 2021, 20 January 2021 and 17 February 2021. At the February 2021 Directions Hearing the Principal Member had extended the time for compliance with some earlier directions. Although it was not completely clear from the papers that ZTU had directly participated in each of these Directions Hearings she had in each case being notified of the resulting orders and directions. ZTU had lodged voluminous documentary material with the Registry at various stages. 3. ZTU had had adequate opportunity to arrange for a transcript to be made of any part of the recording of the Tribunal proceedings that she wished. The Registry records show that ZTU did not apply for a recording of the Tribunal's hearing until 24 February 2021 and that the recording disc had been sent to her on 18 March 2021 so that she should have received it on or about 25 March 2021. In her answers to our questions it became apparent that she had made one unsuccessful attempt to engage a transcriber, but there was no indication that she had made further attempts to obtain a transcription. 4. ZTU told us that she had applied for legal aid but that her application had been refused and that she was now challenging that decision. It was not completely clear that the legal aid grant was sought in respect of these proceedings as opposed to the QCAT proceedings described at [7] above. Be that as it may, ZTU had had, even on a conservative estimate, at least three months to arrange legal advice and representation. There was no indication that, having been refused legal aid she had explored alternative avenues for advice or representation (as opposed to appealing the refusal decision). 5. Any adjournment was strenuously opposed by ZTV and ZTW. ZTW told us that the stress caused to ZTV by repeated request for postponements and delays by ZTU had had a major impact on ZTV's health and welfare and that there was a clear and immediate need for all issues relating to this appeal to be resolved without further delay. 6. No other party to this appeal was legally represented or sought to be so represented. There was a possibility of strategic disadvantage to the other parties if the adjournment were granted to allow ZTU to obtain legal representation. This would arise from the fact that if ZTU did obtain legal representation, she would be the only party so represented.

[10]

Obligation to assist an appellant to formulate alleged errors of law

As noted above, ZTU was unrepresented. The documentary material lodged by her was voluminous. It was difficult for us to discern from it or from the Notice of Appeal the precise nature of any assertion that the Tribunal had fallen into legal error in making its decision; that is, had committed an error of law. The prospect of identifying an alleged error of law was, to put it mildly, not materially enhanced by ZTU's oral submissions.
We were mindful of the warnings in cases including George Papazachariou v Michael Antoun [2015] NSWCATAP 157 and 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."
As was done in Cominos and in other recent Appeal Panel decisions including ZGB v ZGC [2018] NSWCATAP 58 at [27]-[30] and ZAN v The Public Guardian [2016] NSWCATAP 20 at [25]-[27], we endeavoured by discussion with ZTU to assist her to clarify the grounds of her appeal and to identify any alleged errors of law, in particular, by seeking her clarification as to how, in her view, the Tribunal had made an error or errors in reaching its decision.

[13]

Asserted errors of law

On the basis of our discussion with ZTU and in light of our examination of the material provided to us and to the Tribunal at first instance, we identified the following assertions which stood to be investigated as potential errors of law: 1. The Tribunal's assessment that ZTW was suitable for appointment as guardian or financial manager, the asserted error by the Tribunal being its failure to consider or to give appropriate weight to evidence of ZTW's other commitments including her family commitments, which in ZTU's contention, were so extensive that ZTW could not properly undertake the office of the guardian or financial manager and was therefore unsuitable for appointment. That appears to be an assertion of a failure to take into account a relevant consideration (Prendergast ground 5 and arguably ground 6). 2. The Tribunal's positive assessment of ZTW's suitability for appointment (particularly as financial manager), given her failure to manage and supervise the accounts of ZTV's estate adequately. As we understood ZTU's contention, she alleged that there was a history of ZTW failing to observe the degree of diligence necessary to protect ZTV's best interests in the management of his financial affairs and in relation to his execution of a lease agreement for social housing with the aged care service provider ("the Social Housing Agreement") and the Tribunal had failed to consider the evidence or had taken into account irrelevant considerations in reaching its conclusion (Prendergast ground 5 and arguably ground 6). 3. The Tribunal failure to take into account a relevant consideration in deciding to appoint ZTW (at least as financial manager), namely that (on ZTU's assertion) the aged care service provider had wrongly and improperly procured ZTV's execution of the Social Housing Agreement, perhaps by undue influence but at least by unfair treatment of him. We understood ZTU to imply that this had occurred while ZTW had responsibility for managing ZTV's affairs. (Prendergast ground 5).

[14]

(1) ZTW's lack of suitability - unavailability

It is not clear to us that there was any documentary evidence available to the Tribunal as to ZTW's other life commitments or on the extent to which they interfered or might interfere with her ability to undertake her obligations as a guardian or a financial manager (other than brief references to her employment as a Senior Practice Nurse at a General Practitioner clinic: see the Tribunal's reasons at [73] and the extracts below.)
The Tribunal's reasons for decision do advert to the issue at [109], [112] and [114], which are in the following terms: "[109] [ZTU] said that she would probably not support [ZTW] being appointed. She said that [ZTW) had not been involved before and has other commitments. As the hearing progressed [ZTU] appeared to advocate less for herself being appointed as [ZTV]'s financial manager. [ZTU] was unsure about the option of the NSW Trustee and Guardian…. [112] [ZTW] is employed as a Senior Practice Nurse at a General Practitioner Clinic. The evidence is that she has capacity to take on the role of [ZTV]'s financial manager and can balance this with her other family and work commitments. [ZTW] presented as capable and as having the necessary skills to take on the role. Her evidence was consistent with her wanting to help [ZTV] achieve as much independence as possible… [114] [ZTW]'s evidence revealed no disqualifying factors that would prevent her acting as [ZTV]'s financial manager. [ZTW] is aware that if appointed as [ZTV]'s financial manager she is required to work under the authorities and directions of the NSW Trustee and Guardian and be accountable to that office. She saw no difficulties in complying with these requirements."
It was on that basis that the Tribunal, as recorded at [115] of its reasons, was satisfied that ZTW was a suitable person to be appointed as financial manager.
What seems clear is that the "other commitments" which had come to the Tribunal's attention were regarded by it as being positive indications of her suitability for appointment. Given the nature of the commitments, especially her senior nursing role, such a conclusion was a reasonable one.
In presenting her case on appeal, ZTU did not explain the basis on which she asserted the Tribunal had overlooked any important principle or any specific item of evidence in reaching its conclusion as to ZTW's suitability for appointment.
In considering who to appoint, the Tribunal appears to have sought and given appropriate weight to the views presented by all relevant participants. That seems clear from its reasons at [73] in relation to the guardianship appointment and [108]-[114] in relation to the financial management appointment.
In her submissions on appeal ZTW gave a detailed account of the actions which she had taken, particularly as financial manager. She also described her concerns about possible misappropriation of ZTV's estate prior to the making of the financial management order and gave us what appeared to be a frank and credible account of her own family responsibilities, particularly her involvement and understandable commitment to providing care and support for her two sons, both of whom have special needs.
Significantly, ZTW confirmed that she had made those matters clear to the Tribunal at the hearing. That much was not contested by ZTU in her submissions in reply.
ZTW did concede that she had not disclosed her pregnancy to the Tribunal at the hearing, but she told us that that was because she felt that the pregnancy had no bearing on her ability to make appropriate decisions for ZTV.
In short, ZTW provided us with a frank and thorough account of her ability to undertake the functions of a guardian and a financial manager for her father and her other commitments. Significantly (with the one exception of revelation of ZTW's pregnancy) all those matters were disclosed to or apparent from the evidence available to the Tribunal. The Tribunal appears to have applied the evidence relevant to these issues appropriately as the basis for its finding that ZTW was suitability for appointment.
We concluded there was no failure by the Tribunal to take into account any relevant evidence and it did not take into account any irrelevant consideration. Additionally, in so far that it might be asserted that there was an error of law under Prendergast ground 7, we are satisfied that there was sufficient evidence before the Tribunal to support its finding that ZTW was suitable for appointment and that the Tribunal assessed that evidence appropriately.
There is no error of law in this regard.

[21]

Civil and Administrative Tribunal Act 2013 (NSW) 80 Making of internal appeals (1) … (2) Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.

    38 Procedure of Tribunal generally
    (1) ...
    (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

[22]

Civil and Administrative Tribunal Rules 2014 (NSW) 13 Service, giving and lodgment of notices or documents (1) … … (4) When notice or document taken to be served, given or lodged Unless the contrary is proved, the time at which a notice or document is taken to be served, given or lodged is - (a) in the case of a copy of a notice or document that is posted--at the end of the seventh working day after the date on which the notice or document was posted to the person….

    25 External and internal appeals
    (1) An external or internal appeal (including, where required, an application for leave to appeal) may be made by lodging a notice of appeal.
    …
    (4) Unless the Tribunal grants an extension under section 41 of the Act, an external or internal appeal must be lodged--
            (a) in the case where the enabling legislation specifies the period within which the appeal is to be made--within the period specified, or
            (b) in the case of an internal appeal against a decision made in residential proceedings--within 14 days from the day on which the appellant was notified of the decision or given reasons for the decision (whichever is the later), or
            (c) in any other case--within 28 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision (whichever is the later).
    (4A) For the purposes of subrule (4), the day on which reasons are given is the day on which reasons are first given, whether orally or in writing.

ZTU v ZTV

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Judgment (23 paragraphs)

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Cases Cited (15)

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