ZUY v NSW Trustee and Guardian

NCAT Appeal Panel|2021-07-12

REASONS FOR APPEAL DECISION

This is an appeal against a decision of the Guardianship Division of the NSW Civil and Administrative Tribunal (Tribunal) made on 11 February 2021 that renewed a financial management order made in respect of ZUY (the appellant) and committed the management of his estate to the NSW Trustee and Guardian.
We have concluded that the appeal should be dismissed.
We now provide reasons for our decision.

Publication of the names of the parties

The publication or broadcast of the name of any person, who is mentioned or is otherwise involved in an internal appeal against decisions made by the Tribunal is prohibited under s 65(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act). Being an official report of the appeal proceedings, that prohibition does not apply to these Reasons for Decision due to s 65(3) of the CAT Act. Nonetheless, because of the sensitive nature of the matters raised in these proceedings, we will not refer to the parties or witnesses by name but will use descriptors.

Background to the decision under appeal

A financial management order was originally made in respect of the appellant on 8 December 2005, some 16 years ago. That order committed the management of the appellant's estate to the then Protective Commissioner, now the NSW Trustee and Guardian. On 30 July 2018, the order was reviewed at the request of the appellant and was confirmed on the same terms.
On 27 November 2020, the appellant filed a further request to have the order reviewed and revoked.
The decision of the Tribunal on 11 February 2021, which is the subject of this appeal, again confirmed the terms of the original order.
In the Notice of Appeal filed in these proceedings, the appellant relies on events that occurred when the then Guardianship Tribunal made the original financial management order on 8 December 2005. For this reason, it is relevant to note what that Tribunal set out in those reasons concerning its understanding of the views expressed by the appellant at that hearing: "[The appellant] arrived half an hour late for the hearing, explaining he had difficulty with the train. It appears that he had come from the city direct to the hearing. His parents explained that it was pension pay day the previous day and he had gone to the city. On arrival [the appellant] took out a writing pad and pen. He spent most of the hearing taking pages out of the writing pad and tearing them into small pieces. He was critical of the fact that there was no garbage tin into which he could deposit the paper and eventually handed these pieces to his mother to put in her handbag. Asked why he was tearing up paper he responded 'the pages are dirty'. The Tribunal asked [the appellant] a number of questions about the issues raised by his parents. He told the Tribunal that he is not particularly concerned about his debts because he does not have 'a long life' ahead of him referring to his HIV/AIDS status. However he disputed he still owed money to some creditors advising those debts were 'wiped' when he was declared bankrupt. [The appellant's parents] are concerned that their son has incurred further debts following bankruptcy and risks becoming involved in the criminal justice system. [The appellant] told the Tribunal he spends some of his money on poker machines but denied illicit drug use. At the outset of the hearing [the appellant] was strongly opposed to having his finances placed under management, stating he makes 'intelligent, well informed decisions' and wants access to his pension in order to travel to India. Later in the hearing he expressed the view that a financial management order could be somewhat useful and 'perhaps for the best'."
The Tribunal concluded as follows: "On the basis of all the written and oral evidence and, in particular, the evidence given by [the appellant] and observation of him at the hearing, the Tribunal was satisfied that he is incapable of managing his financial affairs because of cognitive impairment related to HIV/AIDS and mental illness…"
The Tribunal's reasons relating to the order made on 11 February 2021 at [12] note that the appellant sought revocation of the financial management order on the basis that he had regained the capability to manage his own affairs and that it was also in his best interests to revoke the order.
This is a reference to the grounds for revocation set out in s 25P of the Guardianship Act 1987 (NSW): 25P Action on review … (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).
The Tribunal's reasons (at [6]) also note that the legal representative for the appellant had arranged for a neuropsychological assessment of the appellant by Dr X, Clinical Neuropsychologist, in support of the revocation application. The NSW Trustee and Guardian had approved the payment of this report out of the appellant's funds.
The Tribunal's reasons at [21] provide a summary of Dr X's report dated 9 February 2021 (Dr X's report) and outlines Dr X's opinion at [21(4)]: "(4) In the opinion of Dr X: (a) [The appellant] continues to exhibit a range of neurological symptoms likely related to his cerebral toxoplasmosis, schizophrenia and possible history of long term substance misuse. (b) [The appellant's] cognitive impairments are most profound in areas of slowed processing speed, impaired memory, new learning ability and executive functioning. His ability to monitor his own output for errors is significantly reduced and he has difficulty in inhibiting his responses and his actions are at times impulsive. (c) [The appellant's] ongoing assertion that an imposter took his place at the hearing in 2015 suggests that he may be continuing to experience delusional symptoms of psychosis. (d) [The appellant] has demonstrated a sound ability to manage small amounts of money in the context of purchasing day to day sundry items. (e) If he were to be given responsibility for managing his funds, [the appellant] would be a significant risk of financial exploitation or dissipation of his funds because of 'his impaired ability to plan, remember, pick up on and correct errors, together with his reduced levels of awareness and insight into his cognitive deficits, impulsivity and evidence of persisting psychotic symptoms (on a background of drug and alcohol misuse'."
The appellant's legal representative's submissions were summarised (at [26]) as follows: "26 On behalf of [the appellant], [his legal representative] made submissions to the following effect: (1) Whilst Dr X had commented that [the appellant's] reference to an imposter appearing before the Tribunal in 2015 could represent ongoing psychosis, it is possible that, whilst that would be a bizarre occurrence, it may have been the case. (2) Dr X has assessed [the appellant] as being able to handle small sums but that he would be vulnerable to exploitation or dissipation of larger sums if he were to manage his affairs. In fact, [the appellant's] affairs involve only a small sum of money in that once Dr X's fees are paid there will be little left of the $7,889 in his trust account and, even if he were to lose his savings they would only amount to some thousands of dollars. (3) Dr X has assessed [the appellant] as being able to understand financial documents. (4) Whilst [the appellant] has some impaired capabilities he is able to manage his affairs as they are."
The Tribunal's reasons at [27] set out the findings reached. Specific reference is made to Dr X's evidence as follows: "(4) Neuropsychological testing has indicated that [the appellant] has a number of cognitive impairments that are relevant to his ability to change his affairs. As advised by Dr X, "his impaired ability to plan, remember, pick up on and correct errors, together with his reduced levels of awareness and insight into his cognitive deficits, impulsivity …" are matters that restrict his ability to manage his affairs. (5) Whilst Dr X speaks of [the appellant's] ability to manage small amounts, in my view, this is in the context of small day to day purchases and understanding of money. However, in my view, [the appellant's] inability to manage his budgeted allowances indicates that [the appellant] lacks the ability to manage a budget even when major expenses such as board and telephone are managed by the financial manager."
The Tribunal member concluded (at [28]) that she was not satisfied that the appellant is now able to manage his affairs and the financial management order could not be dismissed on that basis.
At ([33]) of the reasons, the Tribunal also found that it is not in the appellant's best interests to revoke the order on the basis that the appellant "is not able to manage his funds and is likely to encounter significant financial difficulties if the order is revoked".

The Appeal

Based on the content of the Notice of Appeal, the appellant's supporting material and his oral submissions at the appeal hearing, and having regard to the appellant's status as an unrepresented litigant, we assisted him refine his grounds of appeal (Neill v Nott [1994] HCA 23) as follows: 1. The Tribunal member hearing the matter on 11 February 2021 should not have accepted that the appellant took part in the 2005 and should therefore not have relied on the validity of the Tribunal's decision in 2005. This is because the appellant does not believe that he attended the hearing when the 2005 financial management order was made, that another unknown person pretended to be him and that the findings of the Tribunal in 2005 based on the evidence of that unknown person adversely affected all decisions about him thereafter including the decision under appeal

(the "witness tampering ground") 1. The Tribunal member hearing the matter on 11 February 2021 should not have relied on findings from the 2005 hearing relating to a report by Professor Y, dated 21 September 2005. According to the appellant, this health professional was not a psychiatrist or psychologist and was not qualified to make a diagnosis in respect of the appellant. This also adversely affected all decisions thereafter including the decision under appeal

(the "lack of professional expertise ground") 1. Dr X's report has been altered by an unknown person as the appellant does not believe that Dr X would have reached the conclusions stated in the report about the appellant's capability to manage large sums of money.

(the "falsifying evidence ground")

The Notice of Appeal was lodged within the 28 day timeframe since the date the appellant received the Tribunal's reasons (Civil and Administrative Tribunal Rules 2014, Rule 25(4)(c)).
In relation to the first and second ground of appeal noted above, the appellant raised what he believes were significant irregularities in the evidence presented to the Tribunal in 2005. The relevance to the 2021 decision under appeal was, as we understood the appellant's argument, that all decisions made by the Tribunal since 2005 have been affected by those irregularities. As we understood the appellant's position, he was not seeking to appeal the decision made in 2005, given that 16 years have passed since the decision was made. Rather, we understood his position to be that the decision made in 2021 to dismiss his application to revoke the financial management order should not be allowed to stand due to its reliance on unsafe evidence produced at the 2005 hearing.
The Appellant may appeal against the Tribunal's decision of 11 February 2021, as of right on any question of law or, with the leave of the Appeal Panel, on any other ground: s 80(2)(b) of the CAT Act.
We were unable to identify any potential questions of law raised in the grounds of appeal (John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, [13]-[18]).
The principles which govern the granting of leave to appeal pursuant to s 80(2)(b) of the CAT Act are set out in Collins v Urban [2014] NSWCATAP 17 at [84]: "(1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or 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; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having 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" (citations omitted)
In SAB v SEM [2013] NSWSC 253 (at [8]-[10]), White J considered the principles which applied to an appeal to the Supreme Court from a decision of the then NSW Guardianship Tribunal and stated: "[10] The grant or withholding of leave is to be exercised having regard to the general principles in s 4 of the Act, including the principle that the welfare and interests of the person with disabilities is to be given paramount consideration. But that is not to say that the gateway requiring leave to appeal can be emasculated by the Court's too readily engaging in a detailed review of the facts with a view to detecting possible error."
See also C v W [2015] NSWSC 1774, [44]-[46] (Lindsay J); P v NSW Trustee and Guardian [2015] NSWSC 579, [191] (Lindsay J).

Witness tampering ground

The evidence as to the appellant's belief that he was not physically present at the hearing in 2005 and that someone else appeared in his place was an issue that was before the Tribunal below. The Reasons for Decision make reference to this issue in two respects.
First, it was referred to in Dr X's report. The Tribunal member summarised the relevant part of Dr X's opinion as follows: "[the appellant's] ongoing assertion that an imposter took his place at the hearing in 2015 suggests that he may be continuing to experience delusional symptoms of psychosis" (at [21(4)(c)]).
Second, the appellant's legal representative also referred to this issue in his submissions to the Tribunal. The Tribunal member noted the legal representative's submission as follows: "Whilst Dr X had commented that [the appellant's] reference to an imposter appearing before the Tribunal in 2015 (sic) could represent ongoing psychosis, it is possible that, whilst that would be a bizarre occurrence, it may have been the case" (at [26(1)].
The Tribunal member set out her conclusions (at [27]) "taking into account the evidence and submissions made on behalf of [the appellant]". The Tribunal then proceeded to set out seven bases upon which she concluded that the appellant is unable to manage his financial affairs.
There is no doubt in our mind that the appellant's belief that an imposter took his place at the 2005 hearing is one that is genuinely and honestly held. However, we could see no error in the manner in which the Tribunal member arrived at her ultimate decision not to revoke the financial management order. Whilst the Tribunal member did not make explicit reference to the weight she gave to the appellant's assertion that he was not present at the hearing in 2005, the Reasons make clear that this submission was considered in the context of all of the written material, oral evidence and submissions before her.
When exercising functions for the purposes of the Act, including when considering whether it may revoke a financial management order under s 25P of that Act, the Tribunal is under duty to observe the principles set out in s 4 of the Act giving primacy to the welfare and interests of the protected person as required by s 4(a) (C v W [2015] NSWSC 1774, at [82]-[100]).
There is no basis for concluding that the Tribunal failed to observe the principles set out in s 4 of the Act including giving sufficient weight to the appellant's views about this issue (s 4(d)). The reasoning sets out a basis upon which to find that the appellant is not able to manage his financial affairs. It cannot be said that a matter of administration or policy is raised which might have general application, that the Tribunal adopted an unorthodox approach to the conduct of the hearing, made a readily identifiable error or mistake or that it would be unjust to allow the findings to stand.
Leave to appeal on this ground is refused.

Lack of professional expertise ground

The appellant also submitted that at the 2005 hearing, the Tribunal had evidence before it from Dr Y. According to the appellant, Dr Y did not have the necessary qualification to make a psychiatric diagnosis concerning the appellant and that the Tribunal's reliance on his opinion also affected every proceeding about the appellant thereafter, including the decision under appeal.
The difficulty with this contention is that apart from listing a report written by Dr Y under the heading "Written material considered by the Tribunal", the Reasons relating to the 2005 hearing make no other reference to the content of the report or the weight given or not given to any opinion expressed by Dr Y in that report. More relevantly, there is no reference in the Reasons of the Tribunal below to Dr Y's report nor any indication that Dr Y's views, expressed in a report dated 21 September 2005, had any bearing on the decision under appeal.
Again, we did not doubt that the appellant was genuine in his belief that the content of Dr Y's report has affected decisions made about him since 2005. However, there was no basis for granting leave to appeal on this ground having regard to the factors set out in the authorities previously outlined.
Leave to appeal on this ground is refused.

Falsifying evidence ground

The appellant initially asserted that Dr X's report, referred to in detail in the decision under appeal, was falsified as, in the appellant's view, the report expresses conclusions about the appellant's capacity to manage his own affairs that Dr X would have reached. The appellant subsequently agreed that rather than Dr X's evidence being falsified, he did not agree with the conclusions she reached. The appellant was particularly critical of the view expressed by Dr X that whilst the appellant is able to manage small amounts of money in the context of day to day matters, he would be at significant risk of financial exploitation and/or dissipating his funds in the event he was to assume overall management of his financial affairs. The appellant drew our attention to the circumstance that he had travelled overseas on many occasions over the last 20 years or so which shows that he is able to manage large sums of money.
Dr X's report was commissioned on the appellant's behalf by his legal representative and was submitted to the Tribunal as part of his application seeking revocation of the financial management order. Whilst the appellant disagrees with the opinion provided by Dr X, there is no basis to support a conclusion that the Tribunal dealt with Dr X's evidence and its role as a fact finder in anything other than an orthodox manner or otherwise made a readily identifiable error or mistake or that it would be unjust to allow the findings to stand.
Leave to appeal on this ground is refused.

Orders 1. Leave to appeal is 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 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: 05 January 2022

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