Guardianship Division Case Digest Issue 2 of 2023
The Guardianship Division Case Digest provides a summary of relevant and interesting case law of significance to the work of NCAT's Guardianship Division.
This issue feature case summaries of decisions from the Guardianship Division, NCAT Appeal Panel, and Supreme Court of New South Wales. | | NCAT Guardianship Division | SXD [2023] NSWCATGD 17 S Pinto, Senior Member (Legal), Dr C M West, Senior Member (Professional), J V Le Breton, General Member (Community) - 22 September 2023
In sum: The Tribunal reviewed a financial management order and decided to make a further order, after finding that the subject person has been a victim of fraud and exploitation which has resulted in the significant depletion of his estate. The Tribunal also found that a guardianship order is required to assist the subject person to return to work with a disability service employer.
Facts: SXD is a 48-year-old man with an intellectual disability. SXD lives alone in his own home. He previously lived with his grandmother and his mother, who have both passed away. Until recently, SXD was employed by a disability service employer, where he has worked for 27 years. He receives a part disability support pension (DSP).
In March 2023, the Tribunal received guardianship and financial management applications in respect of SXD from his cousin, CZU, and her husband, Dr Z. The applications raised concerns that SXD is subject to financial exploitation from Ms Y, who was a friend of SXD’s mother. It is alleged that Ms Y has isolated SXD from his friends and family and is stealing large sums of money from him. In April 2023, the Tribunal held a hearing and decided to make a reviewable financial management order committing the management of SXD’s estate to the NSW Trustee and Guardian (NSWTAG). The Tribunal adjourned the hearing of the guardianship application.
The guardianship application and the review of the financial management order were listed for hearing in September 2023. The Tribunal was informed that since the first hearing, the disability service employer has suspended SXD’s employment as there is no funding to pay for its support services. SXD has declined to apply for funding under the National Disability Insurance Scheme (NDIS), which would enable the resumption of his supported employment. The Tribunal was also informed that SXD’s savings have been depleted by two women with whom SXD became acquainted, and have continued to deplete even after the financial management order was made.
Issues and outcome: (i) The Tribunal was satisfied that SXD is a person for whom a guardianship order can be made. SXD said that he would like to return to work as soon as possible. However, the disability service employer has had difficulties helping SXD to understand the NDIS, and the need to obtain services to enable him to continue in supported employment. SXD insists on his independence and his own decision making and does not want anything to do with the government. The Tribunal found that although SXD has been resistant to joining the NDIS, this is due to the negative influence of some persons who have ulterior motives for ensuring that he does not have appropriate support. The Tribunal accepted that it is important for SXD to be assisted to make an application to the NDIS ([22], [26]-[32]). The Tribunal decided to make a guardianship order appointing the Public Guardian with a services function to enable consideration of an application to the NDIS. The guardian was also given authority to make decisions about SXD’s health care to enable any cognitive assessments to be organised as will be required for an NDIS application, and an accommodation function to assess the suitability and safety of SXD’s current accommodation ([32]-[35]).
(ii) In relation to the review of the financial management order, the Tribunal heard evidence that SXD has been subject to financial exploitation by Ms Y and two other women to whom he has been making bank transfers. Dr Z submitted that SXD is “completely under the control of Ms Y”. He stated that Ms Y has isolated SXD from his family and friends and has been “brainwashing” him by telling him that the appellants want to give his house to the government and put him in a nursing home ([42]-[46]). SXD’s bank records indicated that in March 2023 he had a balance of $67,000. When the NSWTAG was appointed in April 2023, SXD’s bank account had declined to $17,022. At the hearing in September 2023, the closing balance was $58 ([64]-[68]).
(iii) The Tribunal previously found that SXD is able to manage some aspects of his day-to-day finances. However, he is illiterate and unable to recognise different monetary denominations. The Tribunal found that he is impressionable, easily led and could be subject to coercion. Taking into account the recent evidence that SXD is likely to have been the victim of financial fraud and exploitation, the Tribunal found that SXD is not capable of managing his affairs. The Tribunal considered that an ongoing financial management order is needed to ensure the continued protection of SXD’s home which is now his only major asset ([75]-[77]).
(iv) Concerns were raised that SXD’s bank account continued to be depleted after the NSWTAG was appointed as financial manager. Whilst inquiries have been commenced by the NSWTAG in relation to financial fraud, at the time of the hearing no referrals have been made to the NSW Police and no investigations have been commenced. The Tribunal recommended that these inquiries be commenced as a matter of urgency. Given that the financial manager would be required to liaise with SXD’s bank and the NSW Police, the Tribunal found that it is preferable that a person who has experience in these matters undertake the role of financial manager for SXD. Therefore, the Tribunal reappointed the NSWTAG ([78]). | SKN [2023] NSWCATGD 16 A Britton, Deputy President, Dr F Duffy, Senior Member (Professional), K Clark, General Member (Community) - 18 August 2023
In sum: The Tribunal reviewed an Enduring Guardianship Appointment (EGA) and decided to vary the instrument to give authority to the appointed enduring guardians to make decisions about the use of restrictive practices.
Facts: In 2011, SKN (the Father) executed an EGA appointing his wife as his enduring guardian, and if she refused to or became unwilling to act as his enduring guardian, his two children, QSN (the Son) and DBE (the Daughter). The Father authorised the enduring guardian(s) to decide where he lives, the health care and other kinds of personal services he receives, and to consent to the carrying out of medical and dental treatment. The Father is now 90 years old and resides in residential aged care, having been diagnosed with advanced dementia. In 2018, the Son and Daughter assumed the role of enduring guardians, after the wife became unable to continue to act as the enduring guardian due to her failing health.
The Daughter made an application to the Tribunal seeking a review of the 2011 EGA. She requested that the Tribunal vary the functions given to the enduring guardians under the instrument by adding a “restrictive practices” function. The Daughter explained that restrictive practices (chemical restraint) was being used in the aged care facility to manage her father’s “challenging behaviours”, including physical and verbal violence directed at nursing staff.
Issues and outcome: (i) The Aged Care Act 1997 (Cth) and the Quality of Care Principles 2014 (Cth) (the Principles) govern the use of restrictive practices in residential aged care. A restrictive practice can only be used if informed consent to the proposed restrictive practice has been given by the care recipient or if the care recipient lacks the capacity to give informed consent, the “restrictive practices substitute decision-maker”: the Principles, s 15FA(1)(f). The Tribunal said that in NSW, the following people are “restrictive practices substitute-decision makers” for the purpose of s 5B(1) of the Principles: a guardian appointed by the Tribunal under a guardianship order and given the authority to consent to or to withhold consent to the use of restrictive practices for the subject person; or an enduring guardian appointed by a person under Pt 2 of the Guardianship Act 1987 (NSW) (the Act) and given authority to consent to or withhold consent to the use of restrictive practices ([20]-[22]).
(ii) When reviewing an EGA under s 6J of the Act, the Tribunal may make an order confirming the appointment with or without varying the functions of the enduring guardian under the appointment (s 6K(1)(b)). Alternatively, if satisfied that it is in the best interests of the appointer to do so, the Tribunal may treat the application for review of the EGA as an application for a guardianship order (s 6K(3)(a)). The Tribunal considered each of these options in the context of the need for decisions to be made about the use of restrictive practices.
(iii) Although the Act does not provide express guidance about the considerations relevant to the exercise of the discretion to vary an EGA, the Tribunal noted that as a starting point, it is required to consider whether the enduring guardian has been, and is likely to continue to be, able and willing to discharge the functions conferred under the appointment in a manner consistent with the principles in s 4 of the Act. Among other things, those principles require that paramount consideration be given to the welfare and interest of the appointer: s 4(a) ([40]). The Tribunal was satisfied that the Son and Daughter are able to exercise the restrictive practices function in a manner consistent with the s 4 principles, having regard to factors such as their detailed understanding of their father’s behaviours of concerns which are said to require the use of chemical restraint, their preparedness to liaise with their father’s doctor and medical staff, and the ability to critically evaluate information provided about any proposed restrictive practice ([51]-[61]).
(iv) As an alternative to varying the EGA, the Tribunal considered whether it would better give effect to the s 4 principles to make a guardianship order and to appoint the Son and Daughter as his guardians with a restrictive practices function. The Tribunal noted that a guardianship order is required to be reviewed by the Tribunal within 12 months of that order being made, and thereafter up to every three years: s 18(1) of the Act. On the other hand, there is no mechanism by which an enduring guardianship appointment can be reviewed. This is significant because a review enables an assessment to be made about whether the restrictive practices function is being exercised by the guardian in a manner which conforms with the s 4 principles ([63]-[64]).
(v) The Tribunal decided to vary the EGA and not to make a guardianship order. The Tribunal found that in their role as enduring guardians the children had been conscientious, thoughtful and given paramount consideration to the welfare and interests of the Father. In addition, the Tribunal found that the children were able to consent to, or to withhold consent to the use of restrictive practices for the Father, in a manner which conforms with the s 4 principles. The Tribunal reasoned that varying the 2011 to add a restrictive practices function better reflects the father’s wishes. The Tribunal found that no useful purpose would be served by making and reviewing a guardianship order in this case ([65]). | KGK [2023] NSWCATGD 14 EM Connor, Senior Member (Legal), AM Matheson, Senior Member (Professional), Professor M McDaniel, General Member (Community) – 16 August 2023
In sum: As a precondition to the exercise of its discretion to make a guardianship order, the Tribunal must be satisfied that a person has a disability within the meaning of s 3(2) of the Guardianship Act 1987 (NSW). The Tribunal considered the scope of s 3(2) and decided that the provision is sufficiently broad to include a person who has a disability by reason of their “paranoid personality and ideas”.
Facts: KGK is a 73-year-old woman who lives in an aged care facility in Sydney. A nurse at the aged care facility made a guardianship application to the Tribunal. The application stated that KGK has vascular ulcers on both legs. She was prescribed antibiotics multiple times by her GP but does not comply with the recommended treatment and clinical care, and has declined to see a vascular surgeon. There is a risk that KGK will develop sepsis and require amputation of her legs. The application further noted that KGK’s capacity to make decisions has never been assessed but she stated that she is ‘strongly against Western medication’ and believes that ‘sleeping more’ will heal her legs. It was suggested that KGK may have an undiagnosed mental illness.
The Tribunal decided to adjourn the initial hearing because it did not have sufficient medical evidence. The Tribunal directed KGK to attend an appointment with a psychiatrist arranged by the applicant. On the day of the resumed hearing, the Tribunal received a report by Dr Z, a consultant psychiatrist. Dr Z was of the opinion that “cognitively [KGK’s] memory seems reasonable, however she seems to have unusual, somewhat paranoid ideas, about several areas of her life...”. Dr Z went on to state that “[KGK’s] paranoid personality is significantly affecting the recovery of her ulcers” ([14]). The Tribunal considered whether it had the power to make a guardianship order for KGK.
Issues and outcome: (i) The Tribunal may make a guardianship order for “a person in need of a guardian”: s 14(1) of the Guardianship Act 1987 (NSW) (the Act). A person in need of a guardian is defined as “a person who, because of a disability, is totally or partially incapable of managing his or her person” (s 3 of the Act). A reference to a person who has a disability is a reference to a person: who is intellectually, physically, psychologically or sensorily disabled (s 3(2)(a)); who is of advanced age (s 3(2)(b)); who is a mentally ill person within the meaning of the Mental Health Act 2007 (NSW) (s 3(2)(c)); or who is otherwise disabled (s (3)(2)(d)).
(ii) The Tribunal accepted the evidence that KGK does not have memory or cognitive impairment but determined that she is ‘otherwise disabled’ within the meaning of s 3(2)(d) of the Act by reason of her “paranoid personality and ideas”. The Tribunal noted that KGK provided no rational explanation for her refusal to comply with treatment, consistently denying the seriousness of her ulcers. Referring to the decision of the Appeal Panel of the former Administrative Decisions Tribunal (ADT) in OE v OF [2009] NSWADTAP 60, the Tribunal noted that the definition in s 3(2) of the Act is broad. In that case, the ADT found no error of law in the Tribunal’s conclusion that the subject person had a disability based on evidence from a general practitioner that she had been treated for depression. The ADT concluded at [9] that “whilst [the evidence] is not the strongest evidence to found a decision that a person has a disability, the breadth of s 3(2), and in particular the words ‘otherwise disabled’, satisfies us that the evidence of depression meant that it was open to the Tribunal to come to the view that OE had a disability” ([22]-[23]).
(iii) Having found that KGK is a person for whom a guardianship order can be made, the Tribunal decided that it should make a guardianship order because it is not practicable for services to be provided to KGK without an order. The Tribunal appointed the Public Guardian as KGK’s guardian with the authority to override her objections to medical treatment to assist in ensuring her compliance with the recommendations of her treating team ([34]-[38]). | DKK [2023] NSWCATGD 19 C P Fougere, Principal Member, A M Matheson, Senior Member (Professional), R Royer, General Member (Community) - 25 July 2023
In sum: The Tribunal dismissed an application for a guardianship order after finding that the subject person is not a person in need of a guardian within the meaning of 3(1) of the Guardianship Act 1987 (NSW).
Facts: DKK is an 84-year-old woman and a citizen of Germany. She has lived in a commune in regional NSW for over 25 years and owns her own home in the Blue Mountains. DKK continues to have strong ties with her family members in Germany. The Tribunal received seven separate applications for guardianship and financial management orders to be made in relation to DKK. The applications were lodged by Ms W, a hospital social worker, UZM, a nephew who lives in Germany, DBN, a neighbour and friend of DKK for over 25 years, and HYL, another long-term friend and neighbour of DKK. At the time the applications were made, DKK was an inpatient at a public hospital where she was admitted with a urinary tract infection, COVID-19 and delirium. She has since recovered from these conditions.
Issues and outcome: (i) The Tribunal decided to dismiss the applications for the appointment of a guardian for DKK, as it was not satisfied that DKK is a “person in need of a guardian” as that term is defined in s 3(1) of the Guardianship Act 1987 (NSW). A “person in need of a guardian” is “a person who, because of a disability, is totally or partially incapable of managing his or her person” ([12]).
(ii) Notwithstanding the lack of up-to-date medical evidence, the Tribunal accepted that DKK has some degree of cognitive impairment and possibly an underlying condition that is causing paranoia. The Tribunal noted that DKK was “clear and articulate” at the hearing. She expressed a clear wish to return to live in her home and insight into the need to get her financial affairs in order. DKK has an enormous amount of support around her, including neighbours and friends at the commune, her friend, Ms Z, in Queensland, and her family in Germany. Her close neighbours and friends were committed to providing support to DKK and to arranging formal support services, if required, obviating the need for a guardianship order. The Tribunal was not persuaded that it could make a guardianship order for DKK ([9]-[14]).
(iii) In relation to the financial management applications, the Tribunal found that while DKK was able to outline in general terms her assets and liabilities, she was less able to explain her plans for managing her estate to meet her financial affairs in future. For example, DKK explained that she wanted to sell her Blue Mountains home but was not able to explain how she would go about doing this. The Tribunal found that due to her vulnerabilities and the difficulties she currently has to plan and manage her day-to-day finances, DKK is incapable of managing her own affairs, and is a person for whom a financial management order can be made ([16]-[20]).
(iv) The Tribunal found that a financial manager will be needed to sell DKK’s house, and to investigate whether DKK remains entitled to a German pension, and if so, to apply to have that pension reinstated. The Tribunal decided to appoint DKK’s friends, Ms Z and HYL, jointly as DKK’s financial managers. The appointments were supported by DKK who had nominated both Ms Z and HYL as people that she trusts to manage her affairs ([24], [30]-[33]). | SKG [2023] NSWCATGD 18 C P Fougere, Principal Member, Professor M McDaniel, General Member - 30 May 2023
In Sum: The Tribunal conducted an end-of-term review of a guardianship order and decided that the preservation of the subject person’s cultural environment weighs in favour of the making of a further guardianship order.
Facts: SKG is a 45-year-old Aboriginal man who lives in regional NSW. SKG has several disabilities including a brain injury and a mild intellectual disability. SKG lives in supported independent living (SIL) run by a disability services provider. In addition, he receives services provided by a community service provider and is a participant in the National Disability Insurance Scheme (NDIS). In May 2021 the Tribunal made a guardianship order appointing the Public Guardian as SKG’s guardian for a period of two years. On the end-of-term review of that order, the Tribunal considered whether to make a further guardianship order.
Issues and outcome: (i) Before exercising its discretion to make a further guardianship order, the Tribunal must consider all of the matters set out in s 14(2) of the Guardianship Act 1987 (NSW) (the Act). These include the views of the person, the importance of preserving the person’s existing family relationships and particular cultural and linguistic environments, and the practicability of services being provided to the person without the need for the making of a guardianship order. The weighing of these factors is a balancing exercise, and the Tribunal may be guided by the principles in s 4 of the Act: IF v IG [2004] NSWADTAP 3 ([12]-[14]).
(ii) The Tribunal considered that the preservation of SKG’s cultural environment weighs in favour of making a further guardianship order. The Tribunal was informed by participants to the hearing that staying in regional NSW and on country is important to SKG. Without a guardian who can advocate on SKG’s behalf, particularly in relation to the appropriate level of NDIS funding that allows him to remain in SIL, it is likely that SKG would have to leave the Tamworth area as there are limited options available to him due to his history of difficult behaviour and criminal offending. In addition, the Tribunal received evidence that the stability created by the guardianship order, including in relation to accommodation and service provision, has allowed SKG to access art classes which is culturally important to him ([18]-[20]). The Tribunal found that SKG has ongoing and complex support needs, and that without a further guardianship order, he would be unable to advocate on his own behalf, particularly in relation to seeking funding from the NDIS ([26]).
(iii) In exercising the discretion to make a further guardianship order, the Tribunal must also have regard to the factors set out in s 4 of the Guardianship Act. Relevantly, the Tribunal found that the guardianship order continues to be necessary to allow SKG to live as normal a life in the community as possible (s 4(c)). In addition, the Tribunal found that the guardianship order is likely to have a relatively limited impact on his freedom of decision and freedom of action (s 4(b)), as the evidence indicates that SKG does not necessarily have insight nor appreciate the impact that the guardianship order has had on his life. Significantly, the evidence indicated that the making of another guardianship order will have a positive impact on SKG’s ongoing wish to engage in his artwork which supports his cultural identity and is a factor in allowing him to remain living in the Tamworth area at this stage because of the positive impact it has on his mental health (s 4(e)) ([26]-[27]).
(iv) The Tribunal was satisfied that it should exercise the discretion to make another guardianship order for SKG with the same functions as the previous order. The order was made for a period of three years ([28]-[30]). | NGC [2023] NSWCATGD 7 M Ryan, Senior Member (Legal), Dr K Eggleton, Senior Member (Professional), Dr M A Smith OAM, General Member (Community) – 09 May 2023
In sum: Under s 25M of the Guardianship Act 1987 (NSW) if the Tribunal makes a financial management order, it may appoint a suitable person to manage the subject person’s estate or may commit the management of the estate to the NSW Trustee and Guardian (NSWTAG). Despite finding that in this case, the NSWTAG lacked a “collaborative” and “culturally sensitive” approach, the Tribunal confirmed the appointment of the NSWTAG as no private person had nominated to act as manager for NGC.
Facts: NGC is a 37-year-old aboriginal man with a cognitive impairment from a traumatic brain injury sustained in 2015. NGC is a participant in the iCare-Lifetime Care and Support Scheme and requires 24-hour nursing care. In October 2015, the Tribunal made a financial management order for NGC, appointing his mother, FZC, as his financial manager. In July 2016, the Tribunal reviewed that order and committed the management of his estate to the NSWTAG.
NGC previously lived in a purpose-built demountable building in regional NSW, located on the same property as FZC and three of his children. However, after the floods in October 2022, he was relocated to another part of regional NSW, 400kms away from his family. In February 2023, the NSWTAG refused a proposal made on behalf of NGC for the purchase of a property for NGC and his family in regional NSW. The NSWTAG reasoned that the purchase would leave NGC in 21-years’ time without any funds other than Centrelink payments, and that NGC had ongoing transport costs. The decision was confirmed by the NSWTAG on internal review, despite iCare-Lifetime Support undertaking to meet certain costs associated with accommodation and transport, and NGC obtaining an aboriginal home loan grant.
OBN, a Brain Injury Case Manager, applied to NCAT for review and revocation of the financial management order. OBN alleged that the NSWTAG had failed to be collaborative in making the decision about the property purchase and, in addition, failed to have regard to NGC’s welfare, practical care needs, emotional wellbeing, and safety and cultural needs, including that NGC’s separation from his family was causing him extreme distress.
Issues and outcome: (i) The Tribunal noted that the NSWTAG’s decision to refuse to purchase the NSW regional property was based solely on potential future financial issues, and most likely made without regard to NGC’s treating team’s advice, iCare’s capacity to cover certain types of costs, or relevant cultural factors. It concluded that “with respect, the NSWTAG’s decision lacked a client centred, culturally sensitive focus”, and that had sufficient collaboration taken place between all parties, there may have been an opportunity to explore options as to how NGC’s purchase could have been facilitated ([57]-[60], [69]).
(ii) The Tribunal found that as NGC is not able to manage his affairs, there is a continued need for a financial management order. It then considered who should be appointed. The Tribunal found that OBN’s evidence was sufficiently compelling to support a review of the appointment of the NSWTAG and it was arguable that the appointment should be revoked ([65]-[70]). However, as no individual had nominated to act as NGC’s manager, the Tribunal confirmed the appointment of the NSWTAG. The Tribunal noted that the NSWTAG’s decision to refuse the property purchase may be subjected to external administrative review in due course ([71]-[73]).
(iii) The Tribunal also made a guardianship order in respect of NGC for a period of two years as it was satisfied that NGC’s traumatic brain injury and cognitive impairment restricts him from making important lifestyle decisions. The Tribunal was satisfied that FZC was suitable to be appointed guardian to make decisions about NCG’s accommodation, advocacy, health care, consent to medical/dental treatment, services, and legal services. The Tribunal noted that FZC and NGC have a compatible and close loving relationship without signs of any undue influence. Importantly, the appointment of FZC will also enable NGC to continue to have a close relationship with his three children who are under FZC’s care ([24]-[29]). | | YCI v Sydney Local Health District [2023] NSWCATAP 295 A Britton, Deputy President, C P Fougere, Principal Member, S E Taylor, Senior Member - 02 November 2023
In sum: The Appeal Panel exercised the power to dismiss an appeal against the decision of the Tribunal under s 55(1)(d) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) for want of prosecution.
Facts: On 10 September 2022, the Tribunal made a four-week guardianship order in respect of the appellant, who was an inpatient at St George Hospital, Sydney. The initiating application was made by a medical practitioner who reported that the appellant was refusing medical treatment for a recent heart attack, was seeking to self-discharge against medical advice, and had presented to hospital emergency departments on 22 occasions since May 2022. In October 2022, the Tribunal listed the order for an end-of-term review as required by s 25(2)(b) of the Guardianship Act 1987 (NSW). At the request of the appellant, the Tribunal adjourned the review to enable him to obtain further material from his general practitioner, and granted his request to be represented by solicitor, Mr Peter Livers. In November 2022, the appellant attended the review hearing by telephone while an in-patient at Royal Prince Alfred Hospital (RPAH). The Tribunal refused a request made by Mr Livers to adjourn that hearing. Following the hearing, the Tribunal decided to renew the guardianship order appointing the Public Guardian for a period of 12 months. Following an application by the Sydney Local Health District (SLHD) the Tribunal also made a financial management order in respect of the appellant and committed the management of his estate to the NSW Trustee and Guardian.
On 2 December 2022, the appellant lodged an appeal against the Tribunal’s decision to make guardianship and financial management orders. In his Notice of Appeal, the appellant contended that the Tribunal had failed to afford him procedural fairness by refusing his request for an adjournment.
Held (dismissing the appeal): (i) Between February 2023 and September 2023, the appeal hearing was adjourned twice at the request of the appellant for various reasons, including to allow Mr Livers to seek the issue of a summons to the SLHD, and to accede to the appellant’s request to attend the appeal hearing in person. In September 2023, a week before the scheduled hearing, the appellant claimed that he was dissatisfied with the quality of Mr Livers’ representation and would be representing himself in future hearings. However, in an email to the Tribunal, Mr Livers claimed that he continued to act for the appellant and asked for the hearing to be adjourned for a further two months because a complaint made by the appellant about injuries he had allegedly sustained while a patient at RPAH was under investigation. The Appeal Panel refused the request for adjournment. The day before the hearing, Mr Livers advised that the appellant had withdrawn his instructions and would be self-represented at the hearing. On the day of the hearing, which was held in person at RPAH, the Appeal Panel was advised by a social worker that the appellant refused to attend. Deputy President Britton met with the appellant in his room and encouraged him to attend. Despite several attempts to encourage the appellant to attend, he said that he would not be attending the hearing on that day or on any other day (see [7]-[19]).
(ii) The Appeal Panel examined the power to dismiss proceedings. Section 55(1)(d) of the NCAT Act gives the Tribunal (and the Appeal Panel) the power to dismiss at any stage, any proceedings before it if the Tribunal considers that “there has been a want of prosecution of the proceedings”. The expression “want of prosecution” is not defined by the NCAT Act. However, its meaning was considered in Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 at [9]-[11]. In that decision, Deputy President Hennessy noted that “the Tribunal’s power to dismiss proceedings for want of prosecution is similar to the power in the Uniform Civil Procedure Rules 2005 (NSW), r 12.7 to dismiss proceedings if a plaintiff does not prosecute the proceedings with due despatch”. This involves a “balancing exercise” with considerations to be given to “the length of delay and associated costs, any explanation or excuse for the delay and any prejudice to the opposing party” ([20]-[21]).
(iii) The Appeal Panel noted that “a conclusion that there had been a “want of prosecution in the proceedings” is not determinative of whether the power to dismiss an appeal should be exercised”. It further noted that in the context of the appellant’s decision-making disability, “a cautious and sparing approach should be taken to the exercise of the power to summarily dismiss proceedings without a hearing on the merits” ([23]).
(iv) The Appeal Panel decided that in this case, the exercise of the power to dismiss the proceedings should be exercised for several reasons (see [24]). Significantly, the procedural history of the matter indicated that there is a real and material risk that if the hearing were to be adjourned a third time, the appellant would fail to prosecute the appeal. The Appeal Panel was not confident that the appellant would participate in the appeal, instruct Mr Livers or some other legal representative to represent him and/or provide submissions which address the purported errors of law made by the Tribunal. The Appeal Panel also noted that the Tribunal is required to review the guardianship order on its expiration in December 2023, and that the appellant has a right to seek a review of the financial management order at any time.
(v) In addition, the exercise of the discretion to dismiss the proceedings is consistent with the “guiding principle” that the Tribunal should facilitate the just, quick and cheap resolution of the real issues in the proceedings: NCAT Act, s 36(1). Given that the appeal has been on foot for over ten months and there is no indication that the appellant’s failure to prosecute the appeal is likely to be remedied, to permit the appeal to continue would result in the other parties and the Tribunal incurring additional costs ([24](5)). | YDL v YDO [2023] NSWCATAP 291 I R Coleman SC ADCJ, Principal Member, L Organ, Legal Member, J Newman, General Member - 01 November 2023
In Sum: The Appeal Panel dismissed an appeal against the decision of the Tribunal to treat a review of an enduring power of attorney as an application for a financial management order. The appeal raised no errors of law and was in effect, a disagreement with the decision of the Tribunal to make a financial management order subject to the supervision of the NSW Trustee and Guardian.
Facts: YDM (the subject person) is a 72-year-old woman who lives in a residential aged care facility and is reported to have Alzheimer’s Dementia. YDM’s son and daughter are the appellants in the appeal. While the appellants had been estranged from YDM in the past, they have now reconciled with their mother.
In February 2021, YDM executed an Enduring Power of Attorney (EPOA) instrument, appointing four of her siblings jointly as her enduring attorneys. In September 2022, the Tribunal carried out a review of the EPOA, and removed three of the attorneys appointed by YDM, leaving one sister as her sole enduring attorney. In October 2022, the son applied for a review of the making and operation and effect of the EPOA, seeking that he and his sister replace their aunt as their mother’s enduring attorneys.
The Tribunal exercised its power to treat the application for review of the EPOA as an application for a financial management order under Part 3A of the Guardianship Act 1987 (NSW). The Tribunal ordered that the estate of YDM be subject to management under the NSW Trustee and Guardianship Act 2009 (NSW) and appointed the appellants as YDM’s joint financial managers. The appellants lodged an appeal, challenging the decision of the Tribunal to make the financial management order. The appellants sought to be appointed as attorneys for their mother under the EPOA, without the involvement of the NSW Trustee and Guardian (NSWTAG). The appellants argued that for various reasons, it was not reasonably open to the Tribunal to make their appointment as joint financial managers subject to oversight and supervision by the NSWTAG. Inherent in that challenge was their contention that their mother’s best interests did not justify that decision.
Held (dismissing the appeal): (i) The Appeal Panel found that the reasons given by the Tribunal for its decision was comprehensive ([16]). The Tribunal considered YDM’s present impaired decision making capacity and limited understanding of her finances, and the admittedly limited experience of the appellants in financial matters that would come within the responsibility of the enduring attorneys. The Tribunal was not satisfied that it would be in YDM’s best interests or that it would better reflect her wishes to make any of the orders provided for in s 36(4) of the Powers of Attorney Act 2003 (NSW), including to remove YDM’s sister as enduring attorney and to appoint either of the appellants in her place. Central to that finding was that when YDM executed the EPOA she did not appoint either appellant but rather appointed four other family members to act jointly as her enduring attorneys. There was no suggestion that YDM lacked the capacity to execute a valid EPOA or that the EPOA was invalid on any other basis ([27]-[33]).
(ii) The decision of the Tribunal to make the joint appointment of the appellants as their mother’s financial managers subject to the supervision of the NSWTAG was not due to any relevant adverse finding with respect to the character or motivation of either of the appellants to act in their mother’s best interests ([23]). When determining whether or not to impose supervision by the NSWTAG on YDM’s financial managers, the Tribunal took into account two key facts: firstly, that YDM did not include the appellants amongst her attorneys, and secondly, that the appellants had “very limited understanding of [their mother’s] finances” at the time of the hearing before the Tribunal. The Appeal Panel found that the Tribunal was entitled to take both factors into account in finding that it was not satisfied that the absence of oversight and supervision by the NSWTAG was appropriate ([50]-[52]).
(iii) The Appeal Panel was not satisfied that the appellants demonstrated any errors on a question of law. The appellants sought to rely on evidence of their current knowledge and familiarity with their mother’s financial circumstances. However, the Appeal Panel found that at best, this evidence would establish only that the Tribunal may, but was not obliged to, make orders for joint financial management without the oversight or supervision of the NSWTAG ([60]). | YDV v YDT [2023] NSWCATAP 276 A Britton, Deputy President, D Charles, Senior Member, B McPhee, Senior Member - 13 October 2023
In sum: The Appeal Panel dismissed an appeal against the Tribunal’s decision to revoke a financial management order. The Appeal Panel found that there was no error of law in the Tribunal’s reliance on expert evidence to support the finding that the subject person is capable of managing her financial affairs. This was despite the fact that the finding was contrary to findings made by two differently constituted Tribunals.
Facts: YDT (the subject person) is a 90-year-old woman. She has three children, a son and daughter who are the appellants in the appeal (the appellants), and another daughter with whom she currently lives (the Resident Daughter).
In 2017, YDT executed instruments appointing the appellants as her enduring guardians and attorneys (the 2017 instruments). In October 2021, YDT revoked those appointments and made a new EGA and EPOA appointing the Resident Daughter and her granddaughter. The Son lodged applications with the Tribunal seeking review of the revocation of the 2017 instruments and the making of the 2021 instruments.
In February 2022, following a hearing, the Tribunal decided to treat the applications for review of the 2021 instruments as applications for guardianship and financial management orders. The Tribunal found that YDT is incapable of managing her financial affairs. In making that finding, the Tribunal relied on several reports written by Dr Liew, who has been YDT’s GP for nearly 30 years. Dr Liew stated that YDT has “early dementia with cognitive decline” and in January 2022, she scored 15/23 on a Mini-Mental State Examination (MMSE) which indicated “moderate cognitive impairment”. At the hearing, the Tribunal observed that YDT was “articulate but somewhat confused” and found that YDT is dependent on others to manage more complex aspects of her financial affairs. The Tribunal made a financial management order appointing the appellants jointly and severally as YDT’s financial managers. The Tribunal also made a guardianship order appointing the daughter as YDT’s guardian and the son as substitute guardian.
The Resident Daughter applied for a review of the February 2022 decisions. In November 2022, the Tribunal again found that YDT was incapable of managing her affairs. The Tribunal gave significant weight to the evidence of Dr Liew and gave little weight to the medical evidence which post-dated the first Tribunal decision, giving detailed reasons for doing so. The Tribunal decided to vary the orders by revoking the appointment of the appellants and appointing the Public Guardian and the NSW Trustee and Guardian (the Trustee) as guardian and financial manager for YDT respectively.
The Resident Daughter lodged an application seeking review of the November 2022 decisions. Following a hearing on 5 April 2023, the Tribunal found that YDT is capable of managing her affairs and revoked the financial management order. In reaching that conclusion, the Tribunal relied on opinions given by Dr McBride, a specialist geriatrician, and Dr van den Berg, a neuropsychologist. The Tribunal noted that whilst it agreed with the conclusions reached by the previous Tribunals having regard to the evidence presented to them at the time, the new evidence provided “new, better and markedly more convincing assessments of [YDT’s] capacity… than the assessments presented to the earlier panels.” ([38]).
The appellants lodged an appeal against the decision to revoke the financial management order. The appellants contended that the medical experts, on whose opinions the Tribunal relied, were biased and favoured the Resident Daughter, and that the Tribunal misapplied the law regarding the capacity finding. Of relevance is the fact that the capacity finding made by the Tribunal was contrary to findings made by two differently constituted Tribunals in February and November 2022, which found that YDT was not capable of managing her financial affairs.
Held (dismissing the appeal): (i) The appellants claimed the Tribunal erred by admitting/giving weight to the opinions expressed by Drs McBride and van den Berg in circumstances where they were “biased” and in conducting their respective assessments “failed to follow standard practice” ([71]-[[73]). The Appeal Panel noted that the Tribunal is not bound by the rules of evidence, including admissibility of expert evidence: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 38(2). Therefore, the acceptability of the opinions expressed by Drs McBride and van den Berg was a question of weight not admissibility. However, a failure by an expert to give an “objective, unbiased opinion” is highly relevant, if not determinative to the assessment by the Tribunal of the weight to be given to the opinion ([66]-[70]).
(ii) The Appeal Panel found that the appellant’s claim that aspects of the assessment did not conform with “standard practice” was not made out on the evidence and was unsupported by expert evidence (see [79]-[96]). In addition, it was reasonably open to the Tribunal to make findings, as was implicit in the Tribunal’s reasons, that the opinions of Drs McBride and van den Berg were “honestly held and not tailored to advantage any party to the proceedings”. It was also implicit that the Tribunal found that the methodology each employed in conducting their respective assessments were not flawed for the reasons contended by the appellants ([97]-[99]).
(iii) The appellants claimed that the Tribunal should not have relied on the capacity assessment of Dr Van den Berg because her opinion is based on a mistake of fact. In oral evidence, Dr van den Berg had mistakenly assumed that the first MMSE conducted by Dr Liew was conducted while YDT was recovering from COVID-19, and therefore the effects of the virus may have adversely affected her performance in the MMSE. That examination, in fact, took place three months before YDT contracted COVID-19 ([113]-[115]). Having heard that evidence, the Tribunal made the same erroneous assumption in reaching the finding on YDT’s capacity. The Appeal Panel noted that there will be circumstances where a wrong finding of fact can amount to an error of law. These include cases where there is no evidence to support the impugned finding: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 at [90]-[91]; or where there is no logical connection between the impugned fact and the material on which it was based: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [124], [125]. However, the Appeal Panel found that this was not such a case. The mistaken assumption cannot be said to be determinative to the Tribunal’s assessment of the expert evidence and its decision to prefer the opinions expressed by Drs McBride and van den Berg over that of Dr Liew ([116]-[121]).
(iv) The appellants claimed that in exercising the discretion to revoke the financial management order, the Tribunal misapplied s 25P(2)(a) of the Guardianship Act by focussing on the question of whether YDT was capable of managing her affairs on the day of the hearing and failing to consider whether YDT would be able to manage her affairs “for the reasonably foreseeable future”. In P v NSW Trustee and Guardian [2015] NSWSC 579 at [309]-[313], Lindsay J gave detailed consideration to the meaning of the phrase “capable of managing his or her own affairs” as used in ss 25G and s 25P of the Guardianship Act. At [311], Lindsay J stated that the concept of “capability” is directed to the reasonably foreseeable future as well as to the present time. The Appeal Panel rejected the appellants claim and said that the Tribunal’s Reasons indicate that in addition to the question of whether YDT was currently capable of managing her affairs, the Tribunal had considered whether she would be able to do so in the reasonably foreseeable future ([110]-[112]).
(v) The appellant also requested that the Appeal Panel exercise the discretion under s 80(3) of the NCAT Act to deal with the appeal by way of a new hearing. They claimed that material produced in answer to a summons by Dr van den Berg constitutes “fresh evidence” and warrants the exercise of that discretion ([134]-[137]). The Appeal Panel found that the Summons material cannot be characterised as “fresh evidence”, that it is not reasonably arguable that the Summons material casts doubt on the reliability of the capacity finding, or that had that material been before the Tribunal, a different decision might have been made ([138]-[143]).
(vi) Having found that there was no error of law in the Tribunal’s decision, or that the capacity finding was against the weight of evidence, the Appeal Panel refused leave to appeal and dismissed the appeal ([144]-[161]). | YFM v NSW Trustee and Guardian [2023] NSWCATAP 266 A Britton, Deputy President, A R Boxall, Senior Member (Legal), M E Bolt, General Member - 04 October 2023
The following case summary is reproduced, with revisions, from the NCAT Appeal Panel Decisions Digest - Issue 10 of 2023
In sum: The Appeal Panel found no error in the Tribunal’s decision to decline to appoint a separate representative for the subject person under s 45(4) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). The discretion to make an order for separate representation is broad. The only constraints on the exercise of that discretion are the obligation of the Tribunal to apply the “guiding principle” under s 36(2) of the NCAT Act, to facilitate “the just, quick and cheap resolution of the real issues in the proceedings” together with the obligation to observe the principles in s 4 of the Guardianship Act 1987 (NSW).
Facts: On 17 March 2020, YFN (the Mother) executed instruments appointing the appellant (the Daughter) and YFO (the Son), jointly and severally as her enduring guardians and attorneys (2020 Instruments). On 10 August 2022, the Mother revoked the 2020 Instruments and executed instruments appointing the Son as her sole enduring guardian and sole attorney (the 2022 Instruments). The Daughter applied to NCAT for review of the revocation of the 2020 Instruments, review of the 2022 Instruments, and seeking financial management and guardianship orders in respect of the Mother. On 18 January 2023, the Tribunal gave leave under s 45(1)(b) of the NCAT Act for each of the Mother, the Son and the Daughter to be represented by different solicitors. On 15 March 2023, the Daughter made an application for an order that the Mother be separately represented under s 45(4)(c) of the NCAT Act. On 20 March 2023, the Tribunal declined to exercise the discretion to order that the Mother be separately represented. The Daughter appealed this decision.
Held (refusing leave to appeal): (i) The Daughter complained that the Tribunal had disposed of the separate representation application solely or largely on the basis that there was no utility in the Mother being separately represented in circumstances where she was already legally represented, and in doing so, the Tribunal failed to give paramount consideration to the welfare and interests of the Mother, as required by s 4(a) of the Guardianship Act. The Appeal Panel rejected this submission; a fair reading of the Tribunal’s reasons did not support the submission. That the Tribunal dealt with the argument that it would be in the best interests of the Mother to be separately represented before the section headed “Decision” does not imply that the Tribunal failed to consider the argument. It was evident from the Tribunal’s reasons that the Tribunal was alive to the argument that the solicitor might not act in the Mother’s best interests (at [50]-[55]).
(ii) The only constraints on the Tribunal’s broad discretion in s 45(4)(c) were the obligations in the guiding principle of the NCAT Act and the principles in s 4 of the Guardianship Act. “Welfare and interests” is not a term defined by the Guardianship Act, and it was for the Tribunal to determine the factors which were relevant to an assessment of the Mother’s welfare and interests in the circumstances of the case. The Appeal Panel rejected the Daughter’s suggestion that s 4(a) of the Guardianship Act requires a protectionist approach. The Tribunal was required to take into account the Mother’s opposition to the appointment of a separate representative and to restrict the Mother’s decision-making as little as possible. These were relevant factors (at [49], [56]-[57]).
(iii) Absent evidence to the contrary, the Tribunal is entitled to assume that a lawyer representing a party has received instructions and has the professional capacity to make an assessment of the client’s best interests in the known circumstances of the case. Similarly, the Tribunal was entitled to assume that the Mother’s legal representative would protect her welfare and interests (at [58]-[59]).
(iv) The Appeal Panel was not required to come to a concluded view as to whether s 45(4) of the NCAT Act permits the Tribunal to appoint a person to represent a party under s 45(4)(b) and order that a party be separately represented under s 45(4)(c). The Tribunal had not disposed of the separate representation application on that basis, although it did consider the application on the construction of the NCAT Act that it permitted the Tribunal to make orders under both s 45(4)(b) and (c). Reading the Tribunal’s reasons fairly and in context, the Tribunal did not fail to appreciate the distinction between the role and obligations of a separate representative and a legal representative (at [47], [63]). | | FC v SC [2022] NSWSC 1780 Slattery J - 31 December 2022
In Sum: The Supreme Court made declarations that the revocation and creation of enduring power of attorney and enduring guardianship instruments are invalid by reason of actual undue influence. The Court also made orders pursuant to s 41(1)(a) of the NSW Trustee and Guardian Act 2009 (TAG Act) that the estate of the second defendant, JC, be subject to management under the TAG Act.
Facts: JC is a 94-year-old man who migrated to Australia from Malta after World War II. He owns an estate in Greystanes believed to have a market value of approximately $3.8 million. In 1997 he returned to Malta where he lived for 10 years with his wife. His wife died while they were living in Malta and JC returned to Australia in 2007.
JC has a son, FC, who lives in Australia. JC’s other son, JN, died in 2014. While he was living in Malta, JC became close to his nephew, SC. In 2016, SC and his wife and children migrated to Australia and settled in Cairns, Queensland.
In 2017 JC executed an enduring power of attorney (EPOA) and an appointment of enduring guardianship (EGA) appointing FC as his enduring attorney and enduring guardian. JC used the legal services of his long-standing solicitor, Mr Paul Sant, to execute the documents.
In 2020 JC suffered a fall and was admitted to hospital. Following medical investigations to determine his capacity to care for himself at home, including a test of cognitive capacity, JC was recommended for residential respite care. On discharge from hospital, JC was admitted to Genesis Nursing Home (“Genesis”). In July 2020 FC decided to place JC in Genesis permanently. JC entered residential aged care as the death rate from the COVID-19 pandemic in aged care institutions was becoming alarming. JC was unhappy at Genesis and became fearful and desperate about his situation. Blaming FC for his circumstances, JC communicated with SC and asked to be taken out of Genesis.
In June 2020, SC arrived in Sydney and visited JC. Shortly afterwards, SC engaged solicitor Mr Paul Falzon to assist JC leaving Genesis. In August 2020, Mr Falzon executed instruments which purported to revoke the 2017 EPOA and 2017 EGA. Those documents contained an error and purported to revoke the appointment of “SC” not “FC”, the enduring guardian and attorney appointed under the 2017 instruments. JC executed new instruments appointing SC as his enduring attorney and his enduring guardian (the August 2020 EPOA and the August 2020 EGA). In addition, JC executed a new will which had been prepared by Mr Falzon naming SC as his sole beneficiary.
SC removed JC from Genesis without telling FC. Two days later, unaware of his father’s whereabouts, FC lodged five applications to NCAT (applications for guardianship and financial management orders, application to review the revocation of the 2017 EPOA and amended applications to review the 2020 EPOA and 2020 EGA).
SC relocated JC to Queensland. In December 2020, JC purchased an investment property in Cairns. He continued to live with SC at SC’s home in Cairns, where he has his own room and is cared for and supported by SC and SC’s children. In January 2021, JC made a new EPOA, appointing SC as his attorney under the laws of Queensland (the 2021 EPOA).
On 12 March 2021, NCAT held a hearing but heard little evidence, spending much of the hearing trying to find a Maltese interpreter. NCAT decided to make an interim financial management order committing the management of JC’s estate to the NSW Trustee and Guardian (NSWTAG), and to adjourn the hearing to 16 March 2021.
The proceedings were then transferred to the Supreme Court. At a directions hearing, Lindsay J extended the appointment of the NSWTAG as receiver and manager of JC’s estate until a further order is made. Following an unsuccessful mediation, Lindsay J made further directions for the matter to proceed to trial.
FC sought a range of relief. This included a declaration that the August 2020 revocation instruments and the August 2020 EPOA and August 2020 EGA are invalid because JC lacked the capacity to make them. He also sought declarations that JC is a person incapable of managing his affairs under s 41(1)(a) of the TAG Act and an order that JC’s estate be subject to management under the TAG Act.
The Court noted that throughout the proceedings, it was evident that JC suffered from strongly paranoid ideation directed at family members, particularly FC. His “growing distortions in this thinking towards his sons” started as early as 2007 and had developed into “elaborate paranoid ideas” by 2019-2020 ([75]-[77]). Due to these ideations, he consistently expressed distrust of FC and did not want any contact with his son.
Issues and outcome: The 2020 EPOA Revocation, 2020 EPOA and 2021 EPOA (i) The Court considered whether the three EPOA instruments were invalid by reason of JC’s lack of capacity and undue influence inducing the making of the instruments. Ultimately, the Court concluded that each instrument was void and of no legal effect. Though there was evidence of a decline in JC’s capacity in 2020 and early 2021 that may have some bearing on the validity of those instruments, the issue of capacity was not ultimately decisive in the proceedings. The Court identified the dominant issue as whether JC was subject to undue influence ([247]).
Undue influence (ii) FC claimed that JC was subjected to undue influence by SC for several reasons, including: JC’s reliance on SC for care, JC’s belief that he needed SC to remove him from Genesis and not return him there, JC trusted SC to look after his interests in removing him from Genesis, and JC’s belief that he required SC’s assistance to protect him from FC ([248]). The Court stated that “once JC realised that SC was his passport out of Genesis, JC willingly subjugated himself to SC’s wishes and preferences and SC exercised dominion over JC” ([249]). Significantly, JC was never able to exercise independent judgement in his own best interests. JC never saw alternatives to SC’s preferences and did not have the intellectual resources to conjure up and analyse all the alternatives that might benefit him. In addition, JC did not have the intellectual resources, planning acumen or legal knowledge in January 2021 to come up himself alone with the idea of making the 2021 EPOA in Queensland (see [250]-[258]).
Appointment of a financial manager (iii) The Court may appoint a financial manager to a person’s estate where it is satisfied that he or she is incapable of managing his or her affairs: s 41(1)(a) of the TAG Act. The Court found that JC is incapable of managing his affairs because he has major vulnerabilities which make him highly suggestible to the making of financial decisions that are either irrational or not for his benefit. The medical evidence supports that from January 2021, JC’s capacity or general insight into his financial affairs has slowly declined. In addition, JC has major vulnerabilities due to his relationship with SC and his paranoid ideation about FC. He is also highly suggestible and there is a risk that he would pay any money or do anything to avoid the threat of going back into a nursing home ([288]-[291]).
(iv) The Court appointed Ability One to act in the role of financial manager, as proposed by FC. The Court found that FC could not be appointed as financial manager because JC does not trust him, and SC could not be appointed due to his controlling behaviour and relationship of undue influence over JC. In deciding to appoint Ability One over the Queensland TAG, the Court noted that Ability One appear to be equipped to respond rapidly to an interstate appointment to give immediate close attention to JC’s financial needs ([292]-[294]).
The 2020 EGA Revocation, 2020 EGA, and appointment of a guardian (v) The Court found that the 2020 EGA revocation was invalid as it did not comply with the Guardianship Act, s 6H(2)(c)(ii) because it does not certify that the appointer executed the instrument voluntarily in the presence of the witness and appeared to understand the effect of the instrument ([284]). The Court determined that the 2020 EGA should be set aside on the same grounds as the 2020 and 2021 EPOA, namely SC’s undue influence magnified by JC’s paranoid ideation about FC. However, it refrained from making that declaration until a guardian is appointed for JC ([297]-[298]).
(vi) The Court found that both SC and FC are clearly unsuitable for appointment as JC’s guardian for much the same reasons that they were found unsuitable to be appointed as financial managers ([305]-[312]). The Court stated that unless a mutually agreed acceptable family member can be found, it will appoint the Public Guardian. However, the Court decided not to make that appointment, but to defer the question of who should be the guardian to the next directions hearing, to allow the parties an opportunity to make submissions on this issue ([313]). | FC v SC (No. 2) [2023] NSWSC 376 Slattery J - 14 April 2023
This is the Court’s second judgment in FC v SC [2022] NSWSC 1780, summarised above.
In Sum: The Court considered whether a private guardian or the Queensland Public Guardian should be appointed to act as the committee of the person of JC. Having regard to the principle that the Public Guardian is an appointment of last resort, the Court decided that it was appropriate to appoint a suitable private guardian.
Facts: After the first judgment was handed down, JC continued to reside with SC at SC’s home in Cairns and appeared to be content with this arrangement. The NSWTAG did not propose that JC be returned to NSW. As the Court accepted that JC is well settled in his present accommodation in Cairns and that it would be too disruptive to move him against his clearly expressed wishes, the issue was whether the Queensland Public Guardian, or a family member in Queensland should be appointed to as act as the committee of the person (guardian) of JC. The appointment of a family friend, SR, was advanced by SC.
Issues and outcome: (i) The Court examined the principles guiding the exercise of its inherent protective jurisdiction in relation to persons incapable of self-management. The Court’s inherent jurisdiction is referred to and confirmed under s 8 of the Guardianship Act 1987. It is not limited by the Guardianship Act but is referred to as existing alongside the statutory powers under that Act: s 23; IR v AR [2015] NSWSC 1187 at [117]-[118]. The principles in s 4 of the Guardianship Act influence the Court’s decision-making about JC’s guardian ([28]-[31]).
(ii) The Court noted that both the Guardianship Act and the policy of general law is that when considering who to appoint to act as a committee of the person (or a guardian), the appointment of the Public Guardian is an appointment of last resort. Section 15(3) of the Guardianship Act is a statutory expression of this principle. The principle has been articulated in various Supreme Court decisions. See W v G (2003) 59 NSWLR 220 at [25]-[26]; Re B (No. 2) [2011] NSWSC 1264 at [3] (White J) ([32]-[34]).
(iii) The Court found that SR was suitable to be appointed as JC’s guardian. SR is a geriatric nurse who works in a rural aged care facility, where she manages 14 elderly residents. She has known JC for two years and her daughter is the fiancée of SC’s son (JC’s grandson). The Court was satisfied that SR had an excellent relationship with JC and JC wanted her to be his guardian. SR demonstrated that she would conduct herself with impartiality between SC and FC and make decisions in JC’s best interests. The Court found that appointing SR as guardian for JC is far superior to appointing the Queensland Public Guardian. It noted that JC would not react with equanimity to having to meet a new officer from the Queensland Public Guardian and that he would resist additional relationships outside the family being forced upon him. Another significant advantage of appointing SR over the Public Guardian is that SR can go straight into the role without delay ([36]-[51]).
(iv) The Court appointed SR as JC’s guardian and authorised SR to allow FC and members of FC’s immediate family reasonable access to the person of JC on such terms as SR may determine. An order made under the inherent jurisdiction of the Court has effect in both NSW and in the Queensland Supreme Court pursuant to the Jurisdiction of Courts (Cross Vesting) Act 1987 (NSW) s 9 and the Jurisdiction of Courts (Cross Vesting) Act 1987 (Qld) s 4(1) ([54]-[55]).
(v) In the first judgment, the Court found that the 2020 revocation of the 2017 EGA was invalid on the basis of the operative undue influence of SC. As the revocation was invalid, the 2017 EGA appointing FC as enduring guardian remained intact. The Court decided to exercise its review jurisdiction under s 6L of the Guardianship Act to terminate that instrument ([52]-[53]). | | GR v Secretary, Department of Communities and Justice [2023] NSWCA 239 Adamson JA, Basten AJA, Griffiths AJA - 06 October 2023
This is an appeal against the decision of the Appeal Panel in ZZT v Public Guardian [2023] NSWCATAP 31. The appeal also relates to the decision made by the Guardianship Division in GKC [2022] NSWCATGD 23. Summaries of those decisions are contained in the Guardianship Division Case Digest Issue 1 of 2023.
In sum: The Court of Appeal set aside the orders made by the NCAT Appeal Panel to refuse leave to appeal against the decisions of the Guardianship Division of NCAT. The Court found that the Tribunal’s decision to refuse to adjourn the hearing of GR’s joinder application and to refuse GR’s joinder application in her absence were legally unreasonably and resulted in a denial of procedural fairness.
Facts: AB is an intelligent 19-year-old man who has been diagnosed with a severe degree of autism. AB was under the parental responsibility of the Minister until he turned 18 in October 2022. Four months before AB’s eighteenth birthday, a caseworker with the NSW Department of Communities and Justice made an application to the Tribunal seeking guardianship and financial management orders to be made in respect of AB. AB’s mother, GR, opposed the applications.
On 31 May 2022, the Registrar notified GR of the directions hearing listed on 9 June 2022 and advised GR that she could apply to be joined as a party to the proceedings. The Registrar also said that any application by GR to be joined as a party could be heard at the directions hearing listed on 9 June 2022 at 4pm. A notice of listing attached to the Registrar’s email included the following statement: “Directions can be made even if you do not attend”.
On 8 June 2022, GR, made a request to be joined as a party to the guardianship and financial management applications. On the same day, GR sent several emails to the Tribunal requesting that the directions hearing be adjourned because she was to attend a hearing at the Children’s Court in relation to her appeal against the care orders made in respect of AB. She also requested that the proceedings be adjourned until the outcome of that appeal is known. She was advised by the Tribunal that the directions hearing will proceed on 9 June 2022 as scheduled. GR then asked the Tribunal to email instructions to appear by telephone or AVL. In a final email sent at 5:22pm that day, GR asked that the directions hearing be adjourned until she can be present.
On 9 June 2022 at 3:19pm, GR sent an email to the Tribunal stating that she is on a train home after the hearing in the Children’s Court and will not be contactable. She also stated that she had not been given the dial-in details for the hearing. The Tribunal decided to proceed with the directions hearing at 4pm and attempted to contact GR on her mobile number. However, the calls went to voice message.
GR provided a transcript of the 9 June hearing to the Court of Appeal but not the Appeal Panel. The Court of Appeal concluded from that transcript that the Tribunal proceeded to treat the responses GR had provided on the form for the joinder application, as her submissions about why she should be made a party to the proceedings. Those responses were that she has “extreme concerns” about AB’s welfare while under the care of the Minister. The Tribunal noted that in those responses GR did not address the issues to be resolved by the Tribunal in determining whether AB is a person in need of a guardian or a financial manager. The Tribunal noted that GR could still be appointed as a guardian even if she were not a party. As the Tribunal was not convinced that GR should be joined, it dismissed the joinder application (the Joinder decision).
On 20 July 2022, a differently constituted Tribunal conducted a hearing and made a guardianship order appointing the NSW Public Guardian as the guardian for AB for a period of 12 months, and a financial management order committing the management of AB’s estate to the NSW Trustee and Guardian, to be reviewed in two years. The Tribunal refused GR’s application to adjourn those proceedings but permitted her to participate in the proceedings and make submissions. See GKC [2022] NSWCATGD 23.
GR brought an internal appeal against the Joinder decision, and the decision of the Tribunal made on 20 July 2022 to refuse to adjourn the hearing. GR claimed that the Tribunal had fallen into legal error by refusing to exercise its discretion to join her as a party to the proceedings, and by determining the joinder application in her absence.
On 3 February 2023, the Appeal Panel refused GR leave to appeal from the joinder decision. The Appeal Panel rejected the contention that she was denied procedural fairness because she was not given a reasonable opportunity to be heard. The Appeal Panel identified five significant factors, which taken in combination was said not to support GR’s claim that the Tribunal failed to comply with its obligation 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”: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 38(5). Those factors included that GR was on notice from 31 May 2022, nine days before the directions hearing, that if she decided to apply to be joined to the guardianship proceedings, her application may be determined at that hearing, and that any application to be joined may be determined in her absence and that “[GR] failed to provide an adequate explanation for her failure to attend the directions hearing” (see ZZT v Public Guardian [2023] NSWCATAP 31 at [47]).
In November 2022 and February 2023, GR commenced proceedings in the Equity and Common Law Divisions of the Supreme Court seeking a range of relief including that the guardianship and financial management orders made on 20 July 2022 be “impugned”. On 19 May 2023, Hammershclag CJ at Eq heard both notices of motions and summarily dismissed the appeals as an abuse of process on three bases: (1) GR had statutory rights to challenge the decision of the Appeal Panel (rather than to seek judicial review); (2) GR sought similar relief in both sets of proceedings; and (3) both proceedings were based on unsubstantiated allegations not sustainable on any material before the Court: GR v Secretary, Department of Communities and Justice; GR v Public Guardian [2023] NSWSC 525.
In June 2023, GR commenced proceedings before the Court of Appeal seeking leave to appeal against: (1) the decision of the Appeal Panel to refuse her application for leave to appeal against the joinder decision dated 9 June 2022, and (2) the orders by Hammerschlag CJ in Eq summarily dismissing the proceedings in the Equity and Common Law Divisions of the Court.
Held (Adamson JA, Griffiths AJA agreeing with separate reasons, Basten AJA in dissent, allowing the appeal in part): (i) The Appeal Panel erred in finding that GR was not denied procedural fairness by the Tribunal at the directions hearing on 9 June 2022 at which GR’s joinder application was determined. The Court noted that there was “no apparent reason” why the Tribunal could not accommodate GR by fixing the directions hearing on a date when she was available. It found that “GR had provided a good reason for her unavailability (being on a train after a court commitment after not being provided with dial-in details) and had much at stake if her application for joinder was refused (the loss of the additional rights accorded to parties)” ([96]). It further noted at [97] that “there are powerful reasons to allow a parent to be heard in proceedings which concern the guardianship of their children, including, and especially, where the issues are “grievous”: see J v Lieschke (1987) 162 CLR 447 at 457-458; [1987] HCA 4”. As AB’s mother, GR was plainly in a position where her interests in AB’s welfare was relevant to the Tribunal’s ultimate decision on the guardianship application. The decision not to adjourn the directions hearing to a time when GR was available to participate and advance her joinder application was not only procedurally unfair but also legally unreasonable in the Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 sense ([95]-[97]).
(ii) The Tribunal erred in treating the information contained in the application form used by GR to be joined as amounting to submissions as to why GR ought be made a party. The Tribunal should not have found that because GR’s responses did not address certain matters that are relevant to whether a guardianship or financial management order should be made (e.g., whether AB was capable of making his own decisions and whether he could manage his finances), GR’s participation would not assist the Tribunal. The Tribunal’s approach did not address GR’s concern that as a non-party, GR would not be entitled to be provided with documents in advance of the hearing, to be permitted to participate fully in the hearing, and if necessary, to appeal the Tribunal’s decision ([98]). Basten AJA noted that the transcript of the hearing on 9 June 2022 was not before the Appeal Panel and that although no explanation was provided, this may have been an omission by GR in running her appeal. His Honour noted that “had the transcript been before the Appeal Panel it may be assumed that the error would have been identified and leave to appeal granted” ([166]).
(iii) The Tribunal also erred in concluding that it would facilitate the “just, quick and cheap resolution of the real issues in the proceedings” under s 36 of the NCAT Act to refuse GR’s application to be joined as a party. The Tribunal paid inadequate regard to the word “just” which incorporates the requirements of procedural fairness required by s 36(2) of the NCAT Act ([99]).
(iv) The Court found that leave ought to be granted under s 83(1) of the NCAT Act to appeal against the decision of the Appeal Panel. The Court noted the significance of the Tribunal making a continuing guardianship order on 20 July 2022. A continuing guardianship order must be reviewed by the Tribunal at the expiration of the period for which the order has effect: s 25 of the Guardianship Act. On such a review, the parties to the proceedings remain parties to the review application. Thus, it reasoned that GR’s application for joinder has “continuing utility” - if she is not joined as a party to the proceedings, she will not have the rights of a party when the Tribunal conducts its review of the guardianship order in respect of AB. The Court found that the decisions of the Appeal Panel to refuse leave to appeal from the joinder decision and to dismiss the appeal ought be set aside as they were the result of procedural unfairness to GR (Orders 2 and 3 in ZZT v Public Guardian [2023] NSWCATAP 31).
(v) As the guardianship order made in respect of GR is due to be reviewed by the Tribunal in late October 2023, the Court decided not to remit the joinder decision to the Appeal Panel to be redetermined. It noted that the delay caused by a remitter to the Appeal Panel may cause undesirable consequences in delaying GR’s opportunity to apply to be joined as a party to the review and if successful, to participate in the review. The Court decided to make a declaration as to the Appeal Panel’s error, with the consequence that the Tribunal can deal with any applications by GR to be joined as a party in the course of its review ([104]-[113]).
(vi) The Court also granted leave to GR to appeal against the summary dismissal of her proceedings in the Equity and Common Law Divisions and set aside the orders made by Hammershclag CJ at Eq on 19 May 2023. The Court considered each of the three bases relied upon by Hammerschlag CJ at Eq in turn and was not satisfied that there was a proper basis for finding that the proceedings were an abuse of process. The reasons are set out at paragraphs [120], [121]-[125] (Adamson JA) (Griffiths AJA agreeing at [224]) (Basten AJA dissenting at [199], [200], [202]). | | |
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