ZVS v ZVT

[2022] NSWCATAP 71

NCAT Appeal Panel|2021-12-03

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At a glance

Source facts

Court

NCAT Appeal Panel

Decision date

2021-12-03

Catchwords

sections 6J, 14, 15 (3), 17. Powers of Attorney Act 2003 (NSW)
Ex parte Lam [2003] HCA 6
(2003) 214 CLR 1 Scarce v Killalea [2003] WASCA 81 Stead v State Government Insurance Commission [1986] HCA 54

Source

Original judgment source is linked above.

Catchwords

sections 6J, 14, 15 (3), 17. Powers of Attorney Act 2003 (NSW)Ex parte Lam [2003] HCA 6(2003) 214 CLR 1 Scarce v Killalea [2003] WASCA 81 Stead v State Government Insurance Commission [1986] HCA 54

Judgment (26 paragraphs)

[1]

No appearance by Fourth Respondent. Fifth Respondent by Ms A. Scott (Senior Guardian) File Number(s): 2021/00221245 Publication restriction: Decisions of the Appeal Panel in respect of orders of the Guardianship Division of the Tribunal have been anonymized to remove any information that may identify any private person involved in the Tribunal's proceedings. The publication of the name of any of the parties or other people referred to in this decision other than the Public Guardian and the NSW Trustee and Guardian, including the publication of any information or other material that identifies them or is likely to lead to their identification, is prohibited: Civil and Administrative Tribunal Act 2013, section 65. Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Guardianship Division Citation: Nil Date of Decision: 07 July 2021 Before: J Halbert, Senior Member C M Kennedy, Senior Member B R Epstein-Frisch AM, General Member File Number(s): 2021/ 00139594

[2]

[5]

The general issues on appeal and our decisions on them

On 3 August 2021 the Registry received ZVS's Notice of Appeal.
An internal appeal, that is an appeal against decisions such as those made by the Guardianship Division here, may be made as of right on a question of law, and otherwise with permission (that is, the "leave") of the Appeal Panel: section 80(2) Civil and Administrative Tribunal Act 2013 (NCAT Act).
It fell to us to decide: 1. whether, in reaching either or both of its decisions regarding, the Tribunal had fallen into legal error; that is, had made its decision on the basis of an error of law, in which case ZVS's appeal would proceed as of right; 2. whether we should in any case grant ZVS leave to appeal; and 3. what orders we should make.
We decided as follows: 1. That in its conduct of the hearing the Tribunal had fallen into legal error, because it had denied procedural fairness to ZVS. It had done so by causing her appointed McKenzie Friend to remove herself to another location during the hearing, such that they could not communicate and ZVS was thereby deprived of the legal and strategic advice and direction which any McKenzie Friend is authorised to provide. Because that error justified our ordering a rehearing of both applications by the Guardianship Division, it was not necessary to determine whether to grant leave to appeal, although if we had been required to address that issue, we would have granted that leave.(See further [74] below) 2. The appropriate orders were therefore that the whole of the case, comprising the two applications to the Guardianship Division, should be remitted to the Guardianship Division for re-hearing by a differently constituted Tribunal. 3. Because it was important that ZVV's welfare and interests be protected and preserved until the re-hearing could take place and a new decision made, the Tribunal's orders of 7 July 2021 (including of course the appointment of a guardian and the removal of ZVS as attorney) were to continue in force until further order of the Tribunal.
These are our reasons for those decisions.

[9]

Preliminary issue: the attempt to introduce new evidence

ZVS sought to introduce new evidence at the appeal hearing. Essentially that was evidence as to a loan of $30,000 allegedly made by her mother ZVV to her sister ZVU. ZVS raised these issues in her written submissions and in two documents dated 28 November 2021, being Documents A7 and A8 in the Appeal package.
As we understood it that evidence was sought to be introduced in order to support a contention that ZVU may not have been a suitable person to be entrusted with managing their mother ZVV's affairs (either as an attorney or potentially as a financial manager). If established that would undermine the Tribunal's conclusions and findings as to ZVU's suitability for continued appointment as attorney. We understood ZVS's contentions to be that ZVU had failed to repay the $30,000 loan by the due date, that there had been at least one withdrawal from ZVV's account whose destination or purpose was unclear and that Kay had improperly used ZVV's disability parking permit.
The Appeal Panel's primary role is to determine whether there has been an error of law or whether leave to appeal should be granted. The Panel does not deal in evidentiary matters or admit evidence other than in two specific situations: 1. The first is where the Panel exercises its discretion under section 80 (3) of the NCAT Act to decide to deal with the appeal by way of a new hearing. In that situation, paragraph (b) of section 80 (3) permits fresh evidence or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance to be given on appeal. But that was not applicable here. There was no application before us to deal with the appeal by way of a new hearing and there was no apparent justification for such a course of action. 2. The second is where there is an application for leave to appeal and the appeal is from a Division of the Tribunal other than the Consumer and Commercial Division, for which special rules, set out in clause 12 of Schedule 4 to the NCAT Act apply. This is not an appeal from that Division. So the evidence can only be accepted by us in accordance with what are known as the principles in Ladd v Marshall [1954] 1 WLR 1491. The Ladd v Marshall principles require, amongst other things, that it be demonstrated that the evidence could not have been obtained with reasonable diligence at the original hearing.
When we asked ZVS why the evidence was not available at the hearing ZVS's response was in these terms: "All evidence was to be discussed by the legal representative on the day of the hearing however was dismissed."
The only plausible construction of that sentence is that the evidence had indeed been obtained and was available on the day of the hearing. No other explanation was put to us. Therefore, the Ladd v Marshall principle referred to at 19 above could not be satisfied.
For those reasons we took no new evidence into account.

[11]

The Appellant, ZVS's case

Although ZVS's Notice of Appeal and submitted documents were not clear in this regard, it seemed that, in general terms, she was appealing against the Tribunal's decisions because she felt that the hearing had been "one-sided" and unfair to her. In summary, she asserted that she had been separated from her solicitor ZCW. The Tribunal had refused leave for ZCW to represent ZVS, but immediately thereafter had permitted ZCW to participate as ZVS's "McKenzie Friend". We have explained the status and functions of a McKenzie Friend in more detail below, at [41]-[46].
It was clear from those documents and ZVS's oral submissions to us that she asserted that as a result of her separation from her appointed McKenzie Friend ZCW during the hearing, she had been deprived of the benefit of any legal or strategic advice or counsel from her and for that reason had not been fairly heard.
More generally, we understood ZVS to contend, in particular, that she was deprived of legal advice as to her response to allegations put by ZVS and ZVT particularly on the boxes issue and the suggestion that she wrongfully dealt with her mother's funds, as explained at [15]-[16] above. She also asserted that she had not been given sufficient time to present her case and had been deprived of the opportunity to respond adequately to assertions by ZVT and other family members that she was not of good character, should not be trusted to manage her mother's financial affairs and therefore should be removed as her attorney.
But no other grounds of appeal or asserted errors of law were evident from what ZVS submitted.
Decided cases have recognised that it can be difficult for self-represented appellants to express clearly their grounds of appeal, or to do what is frequently even more challenging: to identify clearly an error of law on which they rely: see for example George Papazachariou v Michael Antoun [2015] NSWCATAP 157 and Cominos v Di Rico [2016] NSWCATAP 5 ("Cominos").
It was said in the leading case of Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 ("Prendergast") at [12] that where an appellant is unrepresented it is appropriate for the Appeal Panel 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, but it is not the Appeal Panel's 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.
On that basis, we concluded that ZVS's Notice of Appeal and her other documentation identified an error of law; namely a failure by the Tribunal to afford her procedural fairness, in two related but distinct respects: 1. by causing ZVS's appointed McKenzie Friend to remove herself to another location during the hearing, such that there could effectively be no communication between lawyer and client. ZVS's contention was that she was thereby denied the benefit of legal and strategic advice and direction, including in response to allegations raised against her, which her McKenzie Friend might have provided; and 2. by providing insufficient time for ZVS to present her case and to respond adequately or persuasively to allegations made about her character and her actions by family members, which the Tribunal seemed to accept. ZVS asserted that she had been deprived of the opportunity to respond adequately to those allegations and that the Tribunal had failed to afford her a fair hearing by not giving her sufficient time to present her case or to respond adequately to allegations and suggestions of the other family members.
We could not ascertain any other error of law relied upon by ZVS.
If procedural fairness in either respect identified above at [30] is established, an error of law will have been established. The characteristics of various classes of error of law were described in Prendergast: see further [38] below.

[16]

Judicial recognition of the status and importance of a McKenzie Friend

The role of a McKenzie Friend and the limitations on any court's or tribunal's power to interfere with that role were laid down in McKenzie v McKenzie [1970] 3 All ER 1034; [1971] P 33 (McKenzie v McKenzie). That was an appeal to the English Court of Appeal. During the hearing at first instance one of the parties had received informal advice from a young Australian barrister Mr Hanger (who, in his later career, became Queen's Counsel and a leader of the Queensland Bar). Mr Hanger was not at the time of the trial admitted to practice in England. He sat with Mr McKenzie, apparently at the Bar table. He did not seek leave to appear for Mr McKenzie generally and did not address the court. He merely proffered quiet oral advice and guidance to Mr McKenzie. After some time the trial Judge asked Mr Hanger to desist from doing that and asked him to sit in the public area of the court , from which he could have had no contact with Mr McKenzie. Mr Hanger complied with that request and subsequently left the court room as he believed he was serving no useful purpose.
Significantly, the Court of Appeal was most critical of the way in which the trial Judge had acted. It found that his directions to Mr Hanger to remove himself from Mr McKenzie's company constituted an error of law, in that it had prevented Mr Hanger from providing quiet advice and guidance to Mr McKenzie. In the Court of Appeal's view, the Court at first instance had erred (most significantly for our considerations in this matter) in suggesting that Mr Hanger remove himself from the immediate presence of Mr McKenzie. On the basis of that error of law the appeal succeeded.
The result in McKenzie v McKenzie, the role of a McKenzie Friend and its significance to the person represented has been confirmed in several Australian cases, including Scarce v Killalea [2003] WASCA 81, where it was said by McClure JA that: A McKenzie Friend assists a party before the court by, for example, making notes and giving suggestions or advice to the litigant in person but does not perform the role of an advocate or representative: McKenzie v McKenzie… (Our emphasis)
See also many New South Wales cases including Damjanovic v Maley (2002) 55 NSWLR 149 and McGuirk v Vice Chancellor, University of NSW [2009] NSWADTAP 43.
A court or tribunal can of course remove a McKenzie Friend or limit their actions if they are acting contrary to the efficient administration of justice: see for example Noueri v Paragon Finance (No.2) [2001] EWCA Civ 1402. But there is no suggestion that that occurred here.

[17]

What effect did this error have? Relevant findings by the Tribunal

In its Reasons at [56] the Tribunal noted the various allegations which had been raised against ZVS and said: [60] Other allegations were raised against ZVS regarding withdrawals of funds from ZVV's account, possibly for her own purposes, and a general lack of transparency and accountability for the use of ZVV's money including failure to provide receipts… The Tribunal did not make findings about those allegations although they were not specifically denied by ZVS. (Our emphasis)
However, despite the Tribunal's statement that it did not make findings about the allegations, in the concluding paragraphs of its Reasons, at [60] and [61], the Tribunal did make adverse findings against ZVS. It is appropriate to consider those paragraphs in detail. The Tribunal concluded (it used the term "considered", but in the context that can only have indicated a conclusion) that ZVV's wishes and best interests would best be served by at least one of her daughters ZVS and ZVU continuing as her attorney, …given that they could not work together.
The last phrase must be a finding and it must be read with what immediately follows, which was: The Tribunal found that ZVS demonstrated a lack of transparency with ZVU around the problem with the boxes, which had significant cost to ZVV's estate." (Our emphasis)
The phrase underlined in [47], as to the Tribunal not making any findings about certain aspects of what was alleged to be ZVS's transparency, cannot be read in isolation from the rest of the Reasons . Even if it is accepted the Tribunal made no express finding that ZVS lacked transparency generally (that is, that she could not be relied upon at all to be transparent in dealings with all others), quite clearly the Tribunal did find that she lacked transparency in dealing with her sister ZVU: see the words cited at [49].
That must also amount to a finding that ZVS had demonstrated a lack of transparency in dealing with her mother's affairs.
That is a most serious finding in the context of the case and generally. A finding that a person "lacks transparency" in any context carries with it an ongoing taint on the person's character in the same way, although perhaps not always to the same extent, as the debasement inflicted by describing someone as being "economical with the truth". It is a euphemism. What is clearly understood is that the person concerned lacks probity. In the present context, the finding of a lack of transparency was central to the Tribunal's conclusion that ZVS should be removed as an attorney.
The significance of that conclusion is that it was based on evidence and submissions provided in that part of the hearing during which ZVS was effectively deprived of the benefit of advice and counsel from her McKenzie Friend.

[18]

Conclusions as to the McKenzie Friend issue

In conducting the hearing the Tribunal was faced with material logistical hurdles, in particular the fact that the hearing was conducted "remotely" by videoconference and telephone, apparently attended by the frequently-experienced problems of poor or variable video and sound connections. We have taken those difficulties into account.
Additionally the Tribunal, in requiring ZVS's solicitor ZCW to remove herself from ZVS's presence, was making a well-motivated attempt to ensure that ZVV, the subject person who had a disability, was not left alone. That of itself was understandable and admirable. But the Tribunal picked the wrong "companion" for ZVV, namely ZCW and it took that action without ensuring that ZVS would at all times feel free to, and would be enabled to, confer with ZCW as her McKenzie Friend and to obtain her advice, counsel and quiet assistance.
That was the wrong approach. Although it was motivated by understandable motives, it impeded ZVS's access to her McKenzie Friend in the same way as Mr McKenzie's access to the advice, counsel and assistance of Mr Hanger was found by the Court of Appeal to have been impeded, in McKenzie v McKenzie.
As in McKenzie v McKenzie, it constituted an error of law.
That result must obtain, because the Tribunal's action constituted a failure by it to afford procedural fairness to ZVS, in that it denied her access to legal advice and counsel to which she was entitled and which her McKenzie Friend ZCW could have provided and that in turn effectively denied ZVS the opportunity to present her case and explain her actions more completely.
The rules of procedural fairness are designed to "avoid practical injustice": Re Ministe r for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37]; Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 at [4 1]. In our view the Tribunal's actions were the cause of real and practical injustice to ZVS.
The Tribunal's actions therefore amounted to a failure to afford procedural fairness to ZVS. As such, it constitutes an error of law.

[21]

Procedural unfairness: the principle in Stead v SGIO

Having found that ZVS was deprived of procedural fairness, our inclination would be to remit the whole case to the Guardianship Division for a re-hearing.
But an important qualification on such a decision was raised by the High Court of Australia in Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141(Stead).
In Stead, the High Court confirmed the general principle by which any party is entitled to a "fair trial" or fair hearing; that is to say, to what it called "natural justice", including procedural fairness. But at [9] and [10] the Court noted that there was an outstanding "practical question" to be raised in every case and that was: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if (that new trial) would inevitably result in the making of the same order as that made…at the first trial. An order for a new trial in such a case would be a futility.
But the High Court went on, at [11] to explain: Where, however the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference...it is no easy task for a court of appeal to satisfy itself that what appears on the face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial…
We cannot be satisfied that a new hearing of this matter by the Guardianship Division would inevitably lead to the same result as occurred at the hearing on 7 July 2021. In reaching that conclusion we note that the denial of procedural fairness (or "natural justice") in the hearing did have some effect on the entitlement of ZVS to make full and well-advised decisions on issues of fact.

ZVS v ZVT

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Catchwords

Judgment (26 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (17)

Cited By (1)